Abstract

The main philosophical issue of this work is whether some birth mothers and children undergo a unique embodied bio-psychological experience, giving rise to an argument that would justify a legal presumption of child custody to birth mothers. I argue that the birth experience can create a unique bond of connectedness between the birth mother and child. Moreover, the legal system fails to incorporate this connectedness when it does not adequately recognize the importance of women-specific experience in childbirth. Thus a legal bias disfavoring birth mothers is present in judicial surrogate custody decisions. ;Second, a feminist ethics that would address problems of the institution of surrogacy would be grounded in a metaphysic that would neither objectify nor fragment women's birth experience. The holistic ethics of caring portrayed in this work values the phenomenological experience of embodied connectedness between birth mother and infant. In such a process moral framework, women who birth children, and the children they bear, hold certain moral rights to continue their established relationship upon birth. Thus, an ethics of nurturance, by articulating the nature of the mother-child bond, grounds a moral right that justifies a legal right of custody preference to birth mothers. ;Finally, women's birthing experiences do not occur in a social and cultural vacuum. Thus, race, class, and lifestyle difference function to define how a birth mother will experience social and legal rights in the U.S. For this reason it is especially important for poor, Third World, women of color, and those of different lifestyles, to consider personal and political reasons why we ought not participate in the surrogate industry. I explore some of these reasons in the context of feminist social and political theory. I argue that poor women, Third World, women of color, and those of different lifestyles, are particularly susceptible to exploitation by the surrogate industry. Thus, it is not only morally inappropriate to engage these women as active participants in the institution of surrogacy, but politically hazardous as well