Reviewed by Ryan Joel
In “Black Wombs, White Babies: The Racial Biopolitics of the Illinois Gestational Surrogacy Act,” Kenni Zellner explores a state law passed in Illinois to regulate gestational surrogacy, analyzing its connections to racism in reproduction in the United States. The argument Zellner undertakes is a daunting one. As she recognizes in her analysis, the Illinois Gestational Surrogacy Act (IGSA) is nominally unrelated to race. It’s simply a law that seeks to explicitly define parenthood in gestational surrogacy, in which the sperm and egg are supplied by a couple, and the surrogate is used only to carry the fetus. Unlike traditional surrogacy, in which the surrogate carries the fetus and supplies the egg, the gestational surrogate has absolutely no genetic ties to the baby. The main goal of the IGSA is to ensure that the biological parents of a child—that is, the couple who donated the egg and the sperm—retain legal custody of the child. If a gestational surrogate were to change her mind in the course of the pregnancy, most judges would rule in favor of the biological parents. The IGSA codifies that typical ruling and further provides details of what can and cannot be included in gestational surrogacy contracts.
Zellner’s chief argument is that the implementation of this act fits in with a broader American pattern of overvaluing white lives at the expense of black lives. Zellner first establishes the history of the development of fertility treatments and surrogacy technologies, including that most demand for fertility treatment and surrogacy comes from whites. She also asserts that American public policy has a history of discouraging black reproduction.
She then applies the Foucauldian concept of biopolitics to this issue to further develop her argument. Zellner summarizes biopolitics as such: “Biopolitics wants always to produce more and more life, but biopolitics also wants to optimize life, to make life longer, cleaner, and healthier.” A racist form of this “optimization,” Zellner asserts, is the desire to promote white life over black life. The IGSA encourages gestational surrogacy by guaranteeing parenthood for the sperm and egg donors, so Zellner concludes that the act contributes to biopolitical racism because it (1) encourages more white reproduction and does so in using black women’s bodies, because it (2) deters black surrogates from raising the white children of gestational surrogacy.
Zellner’s undertaking is certainly unique, and her arguments have a lot of nuance that is best understood by reading the entire article.