WWSD (What Would Solomon Do)?
There is a story in the Christian Bible about King Solomon and two women who both claimed to be the mother of the same child.
Both women had given birth, but one of the babies died. Each woman then claimed that the surviving child belonged to her. Unable to resolve the dispute themselves, they went before King Solomon.
Solomon proposed a shocking solution: cut the baby in half and give each woman a portion.
One woman agreed, while the other immediately begged Solomon not to harm the child and instead give the baby to the other woman. Solomon concluded that the woman willing to surrender the child to save his life was his true mother.
We often remember this story as an example of Solomon’s wisdom. But there is another element worth considering: when the parties could not resolve the dispute themselves, they turned to the law - the governing authority - to determine whose rights prevailed.
A Modern Conflict of Rights
I thought about that story while following the case involving McKenna West, an Alaska woman who agreed to serve as a surrogate for a California couple.
During the pregnancy, the fetus was diagnosed with hypoplastic left heart syndrome, a severe congenital heart defect. The intended parents decided they wanted the pregnancy terminated. But West ultimately refused.
What followed became far more complicated than a disagreement over abortion.
West left Alaska and traveled to Texas, where abortion laws and surrogacy laws differ significantly from those in California. She eventually gave birth there. The dispute has since involved courts in multiple states, questions about parentage and custody, medical decisions concerning a seriously ill newborn, and competing claims about what the original surrogacy agreement required.
The case is layered and complicated.
Surrogacy itself is not new. Women have carried children for others throughout human history.
But modern gestational surrogacy, where embryos can be created using the intended parents’ genetic material and another woman carries the pregnancy, has created legal and ethical questions previous generations never had to confront.
Three Parties, Three Competing Interests
The West case highlights three sets of seemingly opposing interests: the bodily autonomy of the woman carrying the pregnancy, the parental rights of the people who intended to bring the child into the world, and the interests of the child whose life and medical care are at the center of the dispute.
The difficult question becomes, “Whose rights prevail?”
Someone who believes strongly in bodily autonomy might argue that no contract should ever give another person the power to compel a woman to undergo an abortion.
Someone focused on parental rights might argue that the intended parents entered into a surrogacy agreement precisely because they expected to make consequential medical decisions concerning their child.
Someone focused on the child might argue that neither the surrogate’s wishes nor the intended parents’ wishes should outweigh what legal and medical professionals determine to be in the child’s best interests after birth.
And that is where the debate over reproductive rights becomes considerably more complicated.
Contracts Matter. But Contracts Have Limits.
My initial reaction to the West case was that she signed a contract, and contracts matter. We cannot simply renege on an agreement simply because honoring it becomes difficult.
But contracts do have limits.
Signing a contract does not necessarily translate to surrendering every legal right implicated by that agreement. That distinction is especially important in the case of pregnancy because fulfillment of that contract is consequential to the embryo or fetus, as well as to the body of the woman carrying the pregnancy.
So perhaps the more difficult question is not whether McKenna West had the right to refuse an abortion. Perhaps the harder question is what happens after she exercises that right.
Does refusing the abortion make her the child’s parent?
Does it allow her to disregard the intended parents’ parental rights?
Should she be financially liable for breaching portions of the surrogacy agreement that are legally enforceable?
Which state gets to answer those questions when the parties cross jurisdictions with very different laws?
This case causes us to look at reproductive rights beyond “pro-life” versus “pro-choice.”
When Rights Collide
That brings me back to Solomon.
The lesson of that story is not simply that the “good” mother wanted the child to live. The king’s decision was needed because two people asserted incompatible interests concerning the same child, and personal conviction alone could not resolve the dispute.
In our modern version we have a surrogate saying, “This is my body.” We have intended parents saying, “This is our child.” And now we have a child whose medical interests exist independently of all of them.
There is no way to make everyone happy in this case.
That is why the law matters.
The McKenna West case exposes a blind spot in the way we talk about reproductive rights in American politics.
We have allowed reproductive rights to become almost synonymous with abortion, but this very important issue is so much broader.
It is also about the right to build a family on your own terms.
It is about access to contraception. Access to fertility treatments. The ability to become a parent through surrogacy. The ability to decide whether to have children, when to have them, and what your family will look like.
But with those rights come difficult questions about autonomy.
A surrogate has bodily autonomy. But intended parents also have an interest in reproductive autonomy: they made the decision to create a family, participated in creating an embryo, entered into a legal agreement to bring their child into the world, and expected to exercise the rights and responsibilities of parenthood.
Those two forms of reproductive autonomy can exist simultaneously.
And sometimes, as the West case demonstrates, they can collide.
We Have a Long Way to Go
That is where our political conversation about reproductive rights needs to mature.
If we only discuss reproductive freedom when someone wants to end a pregnancy, we are discussing only one part of reproductive freedom. We must also be willing to defend people’s ability to create families, to use reproductive technology, to enter into surrogacy arrangements, and to make deeply personal decisions about parenthood.
The political question, then, is not simply whether government should permit or prohibit abortion.
Again, it is much larger than that.
How do we create laws that protect people’s autonomy across the entire spectrum of reproductive decision-making, especially when the reproductive rights of one person intersect with the reproductive rights of another?
If our political understanding of reproductive rights begins and ends with whether someone has access to an abortion, then our understanding is incomplete. Reproductive freedom also encompasses the ability to pursue parenthood, to determine what our families look like, and to make consequential decisions about how those families are created.
The McKenna West case demonstrates that we have a long way to go in our discussion of reproductive freedom.
I was thinking a lot about this general topic—how limited and full of posturing—our discussion of this issue is, this weekend at the Women’s Summit, so I appreciate your taking on this fraught subject. I’d like to see us focusing on helping people become parents when they want to in general and reducing the times people are forced into abortion (sometimes late ones) by a country that doesn’t support families and the struggling, doesn’t promote contraception and sexual responsibility, doesn’t inform women about adoption options, makes childbirth and sometimes abortion expensive and inaccessible, and doesn’t educate women about tracking their fertility.