To Whom Do Children Belong?

Surrogacy completes the anthropology of liberal, industrial capitalism

Babies delivered to surrogate mothers in Ukraine during the war, unable to be retrieved by those in the West who commissioned them. They are “abandoned inventory, and display models of the new archetype of humanity,” Jeff Shafer writes.

My dear Archedeliacs,

I have generally refrained from wading into retail politics, and regret permitting myself to get baited into responding to an obnoxious political ad in my last post. I expect that after this Tuesday, regardless of who wins, we will all be going batshit crazy for months. In the dwindling window of time before that happens, when (relatively) calm reflection is still possible, I want to share with you one of the most compelling pieces of writing that I have come across recently. It is titled “Machine Antihumanism and the Inversion of Family Law,” by the legal scholar and former litigator Jeff Shafer. It appears below, without a paywall, by the gracious permission of the author.

This is a paper he delivered last weekend in Margaretville, NY (a tiny town in the Catskills) at a small gathering of weirdos, malcontents, builders, farmers and free thinkers brought together by Ashley and Patrick Fitzgerald of the Doomer Optimism podcast, along with Gord Magill, the Autonomous Trucker. The goings-on last weekend got a nice write-up by my new friends Grant Martsolf and Brandon Daily. It was a well-lubricated, raucous good time. It opened and closed with sustained conversations between myself and Paul Kingsnorth. Other highlights were presentations by NS Lyons and by the notorious Shakespeare hottie Marilyn Simon. As Jeff Shafer spoke, I was thinking who is this guy?! Lyons and I arm-wrestled for the privilege of publishing Jeff’s paper. It was a tie, so we are both publishing it simultaneously.

It is about Assisted Reproductive Technology (ART), in particular surrogacy, and the effect it is likely to have on law by way of a re-conception of the human being that necessarily follows if we permit reproduction to be recast in the transactional mold of consumerist and industrial society. Whatever your positions on the various forms of baby-politics (IVF, abortion, etc.), this paper will help you to see what is at stake when we dissociate reproduction from the fundamental relational setting in which it naturally occurs. For my own part, the quandaries of surrogacy are such that I am not sure it is to be condemned in every case — for example, as a gift from a fertile woman to an infertile woman with whom she is intimate friends. But it is not a gift economy that is emerging on this front, it is an industry. Allow me to riff on Jeff’s paper briefly, by way of a teaser.

ART “invites a totalitarian political dynamic,” he writes. “When the law permits and coordinates this commerce in persons, it teaches and ensures that the existence of a child is a legal problem for state resolution rather than a preexisting relational truth that obliges state acknowledgment and deference.” ART is defended in terms of reproductive rights. But in a legal regime coopted by the logic of ART, “parents are deemed provisionally accredited custodians, not naturally vested authorities.”

The likely consequences go beyond the political. The premises of ART, if they win a thoughtless deference from our legal order, will subtly install a condition of spiritual orphanhood as normal: ART will tend to usher in a pure legal positivism that displaces natural relationality, extending politics into the very condition of human existence. In a sense, this operationalizes the picture of the human person that is tacit in modern liberalism: we are autonomous monads whose origins are of no consequence, “untethered individuals,” as Shafer writes elsewhere.¹

I am reminded of Hannah Arendt’s account of “natality” – that is, the fact that human beings “make an appearance in the world by virtue of being born.”  For her, this is somehow bound up with man’s ability to make a beginning; to initiate something new. That is, real human agency, as against fully patterned repetition. Her logic is a little obscure, but thought-provoking. To subject the natality of the next generation to rational control by us, so that the “new one” (that is, the child) is a product of our choice and engineering rather than the mysterious arrival of a gift… wow. In Arendt’s terms, that looks like a tyranny of the present over the future, and a deprivation all around. Huge thanks to Jeff Shafer for helping us think this through. He would like everyone to know that a portion of this appeared previously at Humanum, a review published by our mutual friends at the JPII Institute.

As always, thank you for reading. Comments are welcome.

-Matt

Machine Antihumanism and the Inversion of Family Law

By Jeff Shafer

Margaretville, NY

October 2024

Yesterday I received an email message alerting me to two news items. The first described an American tech startup that offers genetic testing of human embryos for IQ levels so that the owners of these embryonic children may select which of them to gestate and which to discard, based on their forecasted intelligence. The second news story carried this summarizing headline: “I caught our surrogate drinking alcohol and made her abort the baby.”

British ethicist Oliver O’Donovan once wrote in passing of “a position too familiar to technological society, that of having achieved something that we do not know how to describe responsibly.” In what follows, I would like to attempt such a description, specifically as to the technocratic project of human reproduction that now confounds historic American family law. Under the influence of this tech novelty, contemporary family policy is trending toward standards and defining precepts that deny or refuse roots, nature, and limits of any kind—embodied or otherwise—classifying these as normatively irrelevant inconveniences to be technologically overcome rather than contemplated, honored, and lived in.

            I begin with my dissident thesis: Basic to the law’s role in the relational security of children is the law’s deference to the natural family and the anthropological depths that this family represents and anchors in society.

A child’s entry into existence is not as a blank, solitary integer, primordially unaffiliated and just as well distributed for upbringing to any one household as another. To the contrary, children are, in and from their conception, radically relational and immediately and naturally connected to forebears. Throughout life, children will express in their visibility the bond and resemblances with their mother and father from whom they sprang and to whom they are indelibly connected and thus presumptively received and cared for in their vulnerability.

The recognition that a child has an identity bound up in hereditary descent, and that the father-mother-child triad is a profundity central to the human condition therefore meriting unique deference in the law, has been a constant throughout human history. The organic and natural fact of the human person as familial is an orienting and ordering consideration of justice itself. For it is the calling of the law, and the ground of its authority, to say what is true about the human person.

Yet today in the West we find ourselves in the new and troubling condition of seeing our governments (and other institutions of influence)—in defiance of all human history—redefine marriage and family relations, reconfiguring them in service of a denatured, individualistic, technologically reductionistic, and ultimately statist alternative. And among the questions now upon us in uncomfortably clarifying ways is:  To whom do children belong?

The Assisted Reproductive Technology (ART) industry—with its picture catalogues of men and women whose gametes are for sale, its lab-creation of batches of embryos for eugenic sorting, its “gestate-and-release” surrogacy contracts—exists to decouple child-creation from conjugal relation, to segregate gestation from enduring maternal relationship, and to make blood ties irrelevant to legal child custody and identity. The disintegration and fragmentation of persons, parts, and relations—and to subject them all to commercial negotiation—is the entrepreneurial essence and audacity of this technological regime performing a redefinition of human nature. In terms of its biotechnocratic and consumerist framework, the child comes into the world not naturally related to anyone, but only transactionally connected to the persons responsible for summoning him through purchase or technique, or other effort the law may ratify.

When the law permits and coordinates this commerce in persons, it teaches and ensures that the existence of a child is a legal problem for state resolution rather than a preexisting relational truth that obliges state acknowledgment and deference.

Moreover, for the law to discard the truth of the humanly defining relationality of the child to his forebears, in turn deprives law and society of the public premises that make it possible (for instance) to recognize and mourn the pitiable plight of orphans; to know that adoption mitigates a grievous loss; to justly condemn deadbeat dads; and otherwise to recognize a beauty and responsibility of care and support by a father and mother in view of their generative relation to their child. Each of the foregoing concerns is sensible only if the child is, ab initio, in a fixed relation that carries meaning and duties.

But the new legal model on offer proceeds by describing the child instead as a raw datum, ontologically isolated and absolutely individual—without a history and without a certain home—until the happenstance of a managerial adult choice intervenes.

This sort of mechanical-contractual and “gender-neutral” redesign of humanity invites a totalitarian political dynamic. For if the law now refuses to defer and conform uniquely to the authority of the natural family and its filial bonds, and instead redefines marriage and parent (and perhaps even male and female) to assign rigid equivalence in status to persons and relations that are, in fact, profoundly different, then a pristine legal positivism is enacted in which any sphere beyond state construction and command effectively disappears. When the individual is loosed from the natural family and its constraining certainty of relatedness, he (along with his now-contingent relationships) is instead comprehended exclusively within the uncertainties of political solicitude.

Thus, though this family redefinition is carried out under the banner of reproductive and sexual “rights,” instead of accomplishing a limitation on government power it becomes an instrument securing, in principle, the totalism of state jurisdiction. For on this account, parents are deemed provisionally accredited custodians, not naturally vested authorities.

As, on this telling, bodies are mechanisms, with the locus of personal identity present in subjective interiority, the embodied connections of husband and wife, mother and child, father and child are only empirical or mechanical—not meaningful and defining.

*   *   *

The notion of the untethered individual has been long in philosophical development and maturation. But its effects have been resisted and cabined by ancient and persisting family law standards enshrined in common law, statutory, and constitutional loci. Recent decades, however, have seen a strident and often successful effort to align family law with the precepts of this reductionistic anthropology. Thus the family—that natural community and symbol of integration—is being redesigned in law to conform to the precepts of disintegration marking our era. The law is explicitly adopting a mechanistic philosophical vantage as it cooperates with public and prominent biotechnical practices that implement that perspective. These include the pharmaceutical and surgical elimination of children in utero (because there is no normative meaning or responsibility implied in maternity seen in exclusively biological terms), as well as the manufacturing model of human reproduction by consumer selection.

            As to the latter: The “global baby” (so called) represents the paradigm and the central case of the industry precisely because it best symbolizes the disintegration of nature and organism accomplished by the ART project. This infant manufacture regimen represents and enables the abolition of relationality in reproduction and custody, and with that it establishes the irrelevance of the location of gametic, gestational, technical, and financial participants. The so-called sperm donor may live in Israel, the ovum contributor in Mississippi, the gestator in New Delhi; none speaking the same language, and the only one to lay eyes on the child is the customer in Denver who placed the order and flew in to pick it up. Classifying all aspects of reproduction in mere functional terms enables their commercialization, thereby qualifying them for offshoring and otherwise participating in the efficiencies and larger genetic and physiological resources of global markets. Liquid nitrogen freezers, air transportation, and information technology make geographic divides of no production consequence.

And because the ART baby is a project of making, it veritably demands the law apply a consumer paradigm in the later custody determination: The person hiring and directing the technicians to manipulate the biological material should receive the tailored product of his commissioning.

            By permitting this technician-engineered form of reproduction, the law’s own description of human meaning is on track to correspond to the mechanical features of this system. Once the law permits the will-based biotechnical making of children from the parts and efforts of disbursed participants, the law already takes for granted and validates that the child (despite the visible realities of genealogy and filial origination), in fact belongs to no one in particular. Moreover, the law thereby abandons the grounding for its historic authority and practice to enforce maternal and paternal duties and claims grounded in the ontology, authority, and moral commands of those embodied offices.

            The ART industry’s coup, then, is not merely in the mechanical accomplishment of human reproduction, but in capturing the standards of the law itself. The law’s failure to forbid at the front end the industrializing of human reproduction ensures the law’s submission thereafter to the mechanistic premises of that project. For the ART regime is not just advocating for an unnatural anthropology; it produces vulnerable infants requiring resolution of their custodial placement—which demands the law’s participation. And with that participation, alas, comes the law’s validation of the deeds it inspects and then honors with rules fitted to their character. By pressure of the novel circumstance now before them, judges or other state officers are essentially compelled to stipulate a legal principle elevating something other than the natural, integrated whole of maternity and paternity as the ground for the law’s determination of an adult’s custodial claim and duty to a child. Whatever the contrived resolution, the adjudicative task has been subordinated to the circumstance of industrial reproduction that the law has permitted, and whose human products the law now confronts and must situate.

*   *   *

            A sidebar: The question of “which contributor to the process is the real mother?” is one both perplexed and unanswerable. The unified maternal complex of conception, gestation, and childbirth has been partitioned. Is the mother the ovum donor or the gestator? There is no right answer to that question because its premise is unrecognizable: namely, that organic maternity can be mechanically captured and distributed in parts among two or more persons and thereafter yield or reasonably submit to a metric that gauges “relative or preponderant motherness” among the fragments.

But as pressing and certain is the answer to this question for certain emotionally invested ovum contributors and gestators, respectively—and later the child himself—this confounding question is not one the law now ultimately deems interesting. For within the terms of the permitted operation of the reproduction industry, both genetic and gestating contributors are deemed non-relational aspects of the technical venture in which they participate. The dividing and functionalizing of female physiological contributions has already defined them down to merely material relevance. (That was resolved when this whole thing was deemed legally permissible.) Therefore, the law’s predominate solution as referee from its new perch within this system has been that neither of these embodied aspects is the default of a valid custody role. It is instead one’s intent to produce or obtain the child that is decisive.

*   *   *

            Once conjugal procreation with its natural relational tether, duties, and claims is replaced in law and in fact with contract and genetic and mechanical outsourcing, of course the potential for conflicting claims to a child, or renunciation of claim to the child, is introduced—in a way not present with natural procreation and its settled participant responsibilities which society and the law throughout millennia acknowledged and responded to by deference and enforcement.

            Consider the custody conflicts. For instance, not all women find they can be as emotionally distant and mercenary as they imagined when agreeing or succumbing to act as gestator-for-pay. Some grow to love the child within them, and refuse to relinquish it to the purchasers after birth, or otherwise contest the custody rights of those who rented her uterus. (Recall the infamous Baby M. case.) On the other hand, some purchasers of gametes and/or surrogacy services lose interest in retrieving the child whose immortal existence they’ve proximately initiated, and so abandon the child to the broker. (Incidentally, this sort of abandonment as a statistical occurrence is virtually invited and ensured by the foreign surrogacy markets wherein the consumer caprice that is endemic to commerce generally is further incited by the vast and humanly momentous geographic remove of customers from the gestating child.)

We can imagine other circumstances of disputed custody—though imagination is not necessary; only a willingness to read the reported court decisions showcasing the variety.

*   *   *

To summarize and conclude:  In the vision of the Technium, as well as in those precincts of the law that have absorbed the machine logic as its own, children are radically homeless. That is to say, the child is understood as conceived and entering existence without objective relation to anyone, and thus is without a proper claim to a particular family or to the love and care of those persons whose maleness and femaleness in unifying relation was responsible for the child’s existence, identity, and characteristics. As such, the child has no default placement, no security of embeddedness, no people, no ancestors, no family history that the child is extending.

            We might say that what this means is that the initiating condition of human arrival in the world is as orphans. But that would be wrong. It’s much worse than that. An orphan, by that very classification, is reminded that he lost something vital, and he (and we) are allowed to lament that loss. But in terms of the new techno-anthropology, there is no recognition that the child ever had anything to lose, and so there is no reason or permission for lament—or even for the category of “orphan.”

            Here we might think back to the beginning of the Ukraine war and the photos that made international news showing rows of cribs containing uncollected infants in Ukrainian surrogacy facilities. The ongoing war had kept consumers from flying in to retrieve the children they had ordered. Certain of these children ultimately may live out what they already symbolically represent: abandoned inventory, and display models of the new archetype of humanity.

Instead of such a child’s birth having been a secure transition into a different vantage in the continuing relationship with the woman who had nourished and protected him for nine months, his birth is instead a departure forever from her. He never belonged to her, or she to him. She was a place and a mechanism, not a persisting personal relation. Her disappearance and his vulnerable isolation together illustrate vividly the blanking of human nature which this sinister process demands and enacts. It is a profanity and peril that the law, and all of us, must renounce.

1. “A predominating theme and school of contemporary political philosophy conceives of persons primitively as unattached individuals in a state of nature, whose subsequent attachments are chosen for autonomously designed ends. Because the individual’s rudimentary condition is one of loose isolation, justly free of heteronomous law or restraint, the so-called natural family must be remedially understood to be non-basic, and indeed a deviation from and impediment to full realization of the individual condition of freedom,” from “Producing the ‘Global Baby,’” Humanum, July 23, 2023.