The politics of wet nursing in England and other parts of Europe shifted between the seventeenth and nineteenth centuries, influencing how wet nursing was taken up in the New World. Aristocratic British women in the seventeenth and early eighteenth centuries commonly circumvented the task of infant feeding—along with other household physical (p.92) labor—by delegating this responsibility to a woman of lower socioeconomic status. In 1700 less than half of all British women breastfed their infants, while the rest were nourished by “dry-feeding” or wet nurses.⁴ It was not unusual for children to be sent away from their mothers to be breastfed in the country by peasant women, who were considered closer to nature; this practice was symptomatic of the division of women by class.⁵ Hegemonic ideologies of femininity cast aristocratic women as frail, sickly, and unfit for physical labor (narrowly excepting childbirth), whereas working-class and peasant women were viewed as naturally sturdy and physically robust.⁶

Nonetheless, aristocratic women were not the only ones to employ wet nurses; working women also did so in order to continue their contributions to the family economy, and families of all classes turned to either wet nurses or dry feeding when mothers fell ill or died.⁷ Despite the high infant mortality associated with these alternatives to maternal nursing, many upper-class women were faced with pressures to eschew breastfeeding regardless of their personal preference, whether as a signal of family status, a reflection of Victorian beauty standards, or to avoid the contraceptive effects of nursing.⁸

Despite this, mothers faced condemnation for failing to breastfeed by physicians, social philosophers, and clergymen, even when wet nursing was commonly practiced. This rhetoric is exemplified in a late seventeenth-century publication with the lengthy title The Compleat Mother, or, An Earnest Perswasive to All Mothers (Especially Those of Rank and Quality) to Nurse Their Own Children, by Henry Newcome. In it, the clergyman compares himself to the biblical figure of David as he battles the Goliaths of “custom” and “fashion” that were corrupting the maternal responsibilities of English women. This condemnation of “fashion” in favor of the “natural” (especially as pertaining to women) was also very much a hallmark of Enlightenment thought. Newcome chastised the English aristocracy, asserting that even peasant children were better off than those born into nobility, for the child of the wealthy was likely “turn’d out, exil’d from his Mothers embraces as soon as from her Womb, and assigned to the Care of some Stranger, who hath no other Endearments toward it, than what are owing solely to her Interest.”⁹ Newcome’s negative appraisal of wet nursing paralleled other Enlightenment-era criticisms of the aristocracy, (p.93) which championed individual merit and effort over inherited power and wealth.¹⁰

By the mid-eighteenth century, bourgeois British families had largely turned away from the practice of wet nursing. Public opinion and the weight of medical authority in England had shifted; breastfeeding became a symbol of women’s maternal devotion, and the refusal to comply was cast as a sign of personal selfishness associated with an aristocratic lifestyle. In A History of the Breast, Marilyn Yalom contends that this change was in part a reflection of the political ideologies of the time; “physical health offered a metaphor for the health of the state,” and thus what was good for the child (maternal breastfeeding) was good for the nation.¹¹ The practice of sending children to the countryside declined in popularity, and women who continued to use wet nurses for health reasons did so within the home, giving the mother the authority to oversee and manage the process.¹² This shift in the geography of wet nursing also impacted the population of employable women, from the “ruddy” and supposedly healthy country nurse to the morally ambiguous urban mother.¹³

“Some Directions for Chusing a Nurse”

Guidebooks on childrearing were common in Europe and England in the seventeenth and eighteenth centuries.¹⁴ While many took the opportunity to speak out against wet nursing, the physicians, clergymen, and social commentators who wrote such manuals also recognized the importance of advising families on how to choose a nurse should one prove necessary. The careful choice of a wet nurse was significant because of the high stakes involved: the wet nurse initiated intimate bodily contact across class lines, posing a perceived threat to the health, character, and morality of her charge. Anxiety over the fitness of the wet nursing population grew alongside the increased separation of spheres between men and women as well as the attendant pressures of intensive mothering.

The relationship between the character of the wet nurse, her milk, and its effects on the child was highly debated. The racial taxonomist Carl Linnaeus warned that wet nursing not only violated the laws of nature, but endangered infants. Linnaeus claimed that lower-class wet (p.94) nurses ate unhealthy foods, drank copious amounts of alcohol, and could potentially infect a child with venereal diseases.¹⁵ Both Linnaeus and other scholars, including Jean-Jacques Rousseau, believed that children were imbued with the character of the lactating woman through her breast milk, and thus the milk of an immoral woman could forever taint a child.¹⁶ Moreover, the anti–wet nursing stance of authors such as Rousseau, Linnaeus, and Cadogan were closely tied to beliefs about the proper role of women in the home as both caring wives and loving mothers.¹⁷

As a result, advice and warnings about wet nurses ranged from their character, morality, and psychological health to physical attributes and environmental concerns. In a 1790 essay, Dr. Benjamin Lara rejected the popular advice that redheaded wet nurses should be avoided (their fiery hair was said to reflect an unstable personality) but did not dismiss the importance of the nurse’s temperament.¹⁸ Lara insisted that the wet nurse be “strong, healthy, active, and of good disposition. Irritability is hurtful to the milk, and consequently will prejudice the child.”¹⁹ The physique of the wet nurse was also important; in an eighteenth-century “nurse’s guide” that took the form of a dialogue between a nurse and a physician, the doctor instructed the nurse on the following:

Choose one that is of a middle Size, that is neither of a Poor or lean Habit, nor overloaded with Fat. A very lean Woman may have an impvorish’d Blood, and bad Milk for the same reason; and a gross Fat woman may be subject to Humours, which spoil the milk. See that she is of a Sanguine (that is a fresh) Complexion, and has plump and firm flesh. If she has her monthly Discharges, she is hardly fit for this office; for ‘tis a Sign that she is of an hot Constitution, and therefore amorous, and not subject to the self-denial that’s requir’d of a good Nurse.²⁰

As this example illustrates, the physicality of the body was read as symptomatic of the quality of the milk, and because breast milk was believed to be none other than whitened blood, “bad blood” translated directly to “bad milk.” Lara also tapped into the ancient suspicion of menstruating women, viewing “monthly discharges” as an indicator of hypersexuality and moral lassitude. As these examples suggest, the milk of the wet nurse was thought to transfer her constitution to the child, and thus (p.95) fears about the quality of the nurse were translated into anxieties over the reproduction of the nation. This rhetoric is a historical example of the familiar overdetermination of the female body as a site of contagion, and particularly the marked body of the peasant woman as a potential contaminate of the vulnerable body politic. The historian Rachel Trubowitz argues that the cultural obsession with wet nursing, milk, and blood in England during the seventeenth century was a reflection of the brewing “boundary panic” between the English and Others as that nation engaged in colonization, travel, and foreign trade.²¹ One way of containing this threat was in the shift toward treating wet nurses less as servants to be managed by mothers and more as medical resources under the authority of doctors.²² In the New World, the reproductive labor of wet nursing was both classed and racialized, altering the discourse concerning the practice and the stakes of the debate.

Wet Nursing in the Americas

While the practice of wet nursing was transplanted to the New World by English colonizers, white women in America were strongly urged to breastfeed their own children by authorities ranging from Puritan religious leaders to medical doctors.²³ The debates surrounding maternal breastfeeding were about more than infant health—they also served as an emblem of the emerging democratic values of the New World and an Enlightenment-era rejection of the social system of British aristocracy.²⁴ When families did turn to the services of a wet nurse, their options were largely limited by the available female labor pool. Early settlers turned to Native American women as wet nurses, but as the institution of slavery spread during the colonial period, enslaved women also breastfed in place of mothers who were recovering after childbirth, to supplement the milk of a woman who was ill, or when a woman died in labor.²⁵ Historians conclude that roughly 20 percent of slave-owning families used black wet nurses, although the statistics on cross-racial wet nursing have been debated due to inconsistencies in the historical record.²⁶ Evidence for the use of black wet nurses can be found in newspaper advertisements, such as the following 1776 ad in the Georgia Gazette: “Wanted by the Month: A HEALTHY CAREFUL NEGROE WENCH for a WET NURSE. One without a child will be most agreeable, or with a child (p.96) not above six months old.”²⁷ An 1804 ad in the Virginia Argus similarly demonstrates the use of black wet nurses: “Wanted to hire or purchase a wet nurse without a child of her own.”²⁸

The first announcement points to concerns with the health and “quality” of the wet nurse, while the second indicates that slave owners were willing to purchase an enslaved woman specifically for the purpose of wet nursing. Both suggest that if white slave owners were concerned about the potential threat of “contamination” posed by black wet nurses, these concerns were overcome by necessity. The historian Sally McMillen argues that while cross-racial wet nursing may not have been the norm in the South, there is little evidence to suggest that the practice offended the “racial sensibilities” of white people as a whole.²⁹ This is supported by evidence in the letters of a mid-nineteenth-century North Carolina woman, who wrote that her baby’s good health was attributable to the “fine, healthy, careful Negro woman” who nursed her. Likewise, after the (unexplained) “loss” of an enslaved wet nurse, another Appalachian slave owner joked to his brother that “as she [the wet nurse] has always been a necessary institution in your Domestic affairs, I see no other channel for you in the future, than to ‘shut up shop’ and discontinue the business” of having children.³⁰ While anecdotal, these reports suggest that cross-racial wet nursing was normalized, even naturalized, despite its status as a minority phenomenon, similar to cross-racial surrogacy today.

In the economic and political context of the antebellum South, reliance on the labor of enslaved people in the service of white reproduction was incorporated into the natural order of domestic affairs. This in many ways parallels the techniques of naturalization and normalization that emerge in response to assisted reproductive technologies in the contemporary United States. The feminist theorist Charis Thompson contends that naturalization “encompasses the ways in which scientific, biological, or ‘natural’ idioms normalize and control the physically or socially deviant, pathological, or dangerous.”³¹ In the case of cross-racial gestational surrogacy, the scientific and biological discourse of genetic essentialism can be deployed by intended parents to naturalize the racial identity of the fetus as determined by genetics, not gestation.³² Likewise, in cross-racial wet nursing, popular and scientific theories of heredity were strategically embraced or rejected in order to normalize the potentially socially destabilizing cross-racial contact between nurse and child.

(p.97) While some slave owners undoubtedly feared the love and intimacy forged between nurses and their white charges, the makeup and origin of breast milk also held rich historical and cultural symbolism. As Michel Foucault notes in The History of Sexuality, the meaning of blood shifted in the eighteenth century. The bourgeoisie continued to fear “bad blood” in the form of heredity even as the power of aristocratic “blue blood” waned. This fear, Foucault contends, spawned an entire literature concerning health, hygiene, and the raising of children such that from the eighteenth century on, the bourgeoisie “converted the blue blood of the nobles into a sound organism and a healthy sexuality.”³³ Indeed, “ideas about vigor, well-being, and appropriate sexual morality and behavior were intertwined with notions of purity of blood and racial difference.”³⁴ The theory that breast milk was none other than whitened blood strengthened the arguments made by doctors that women should breastfeed their own children—if breast milk was indeed the mother’s own blood, then what better source of nourishment for a child than that life-giving source?³⁵ In this respect, breast milk was compared favorably to semen as a vital source of life.³⁶

Yet breast milk could also be a source of danger: childhood experts in the nineteenth century warned that through wet nursing, lower-class blood entered the body of the upper-class child. The elision between blood and milk that is found in medical texts is of particular relevance to cross-racial wet nursing in America because “African blood” translated into enslavement. Children born with African blood were born into slavery, even those whose fathers were white slave owners. This practice had an established history in the United States; in 1662 the Virginia Assembly held that children were determined to be enslaved or free by the “condition of the mother.” This doctrine indicated that inconsistencies in the logic of blood would be tolerated in order to shore up the dominant hierarchy of race and gender.³⁷ Considering this history, if breast milk was viewed by many as none other than whitened blood, what did this mean for white children nursed by black slaves? It is to this question of “lactational heredity” that I will turn shortly.³⁸

While white Southerners may have normalized the use of black wet nurses, Northern and foreign travelers to the South in the late eighteenth and early nineteenth centuries routinely exaggerated reports of black “mammies” serving as wet nurses, as they considered cross-racial nursing (p.98) to be a remarkable oddity.³⁹ Such visitors questioned how the milk of a black wet nurse would affect the burgeoning characteristics of the infant. The clergyman Jonathon Boucher, a recent arrival from England at the turn of the nineteenth century, expressed horror at the practice in his correspondence home, declaring, “I cannot be reconcil’d to have’g my bairns nurs’d by a Negro Wench. Seriously, that is a monstrous Fault I find with ye people here, & surely it is the source of many Disadvantages to their Children.”⁴⁰ To this traveler, cross-racial wet nursing raised the specter of the racial contamination of white purity. According to Janet Golden in A Social History of Wet Nursing, “Some believed that children literally drank up their wet nurses’ moral and physical imperfections and that their ‘temper and disposition’ were ‘molded in great measure by the state of the wet nurse’s mind.’”⁴¹ Beliefs about the dangers of wet nursing were not limited to Europe; antebellum American physicians also studied the effects of environment and heredity on the milk produced by wet nurses, proposing theories with “complex, fluid, and overlapping notions of heredity, constitution, and environment.”⁴²

These theories were quite flexible—and deeply gendered. Because “heredity” was expanded to encompass conception, gestation, and nursing, a person’s negative characteristics well into adulthood could be attributed to wet nursing, while positive traits were deemed the result of good breeding and good blood. In addition, traits were not believed to be inherited equally from both parents; men were thought to pass on the capacity for analysis and reasoning, while women imbued character and emotion, and thus the wet nurse would primarily influence the disposition but not the intelligence of the child.⁴³ Even temporary states could infect breast milk and harm the child. Women in the nineteenth century were warned against breastfeeding when ill, nervous, “overexcited,” or “deranged.”⁴⁴ This view aligned with the philosophy of mind/body dualism that associated irrationality, excess, and permeability with femininity and corporeality. Physicians sought to control the blurry boundary between the dangerously porous bodies of women and the vulnerable infant through science, reason, and rationality—all “masculine” characteristics of the mind.

By the mid-nineteenth century, increasing immigration and urbanization in the North meant that the pool of available wet nurses in this region largely consisted of Irish and German immigrants (and later in (p.99) the century, women from southern and eastern Europe). In the North, the urban immigrants who served as wet nurses were viewed as a threat to the health of infants and to the home. These recent immigrants were not considered fully white, and in urban areas many had become mothers out of wedlock, thus raising anxieties about cross-race and cross-class contact.⁴⁵ Theories of “lactational heredity” were commensurate with the xenophobic politics of the urban North, including the belief that foreigners were polluting America’s superior native stock.⁴⁶ Eugenicists and nativists opposed cross-racial wet nursing just as they opposed miscegenation, stemming from the racist fear of the contamination of “pure” white bloodlines.⁴⁷ Yet very different views of racial heredity took root in the South than the North. According to Golden, “Cross-race wet nursing led Southerners to evolve a fixed and ultimately modern notion of heredity—that parents endowed their offspring with certain physical traits at the time of conception,” in contrast to the coexisting ideology of heredity as “a dynamic force, influencing development from the time of conception through weaning.”⁴⁸

The view held by many in the South is comparable to the contemporary popular understanding of genetics—namely, that a wide range of traits and characteristics, including race, are determined at the time of conception by the genetic contribution of the mother and father. This language of genetics was not, of course, the way scientists would have explained racial difference at the time. Rather, race was primarily understood using the pre-evolutionary theories of monogeny and polygeny. Monogeny was the leading Euro-American theory of race in the eighteenth century, based on the belief that humans of all races were part of the same species. Racial difference was thought to result from environmental conditions that led to the degeneration of certain racial groups, with whites reflecting the slightest level of degeneration, and blacks the greatest; this theory aligned with the Christian origin story in which all humans were the offspring of Adam and Eve.⁴⁹ Polygeny, known as the “American” school of anthropology, began to develop in the early nineteenth century but reached its peak in the 1840s and 1850s.⁵⁰ Polygenists asserted that each race was in fact an entirely different species with distinct origins, both biologically and geographically.⁵¹ American scientists were eager to demonstrate their independence from the yoke of European intellectual thought, and the theory of polygeny was important (p.100) to this project of differentiation.⁵² Moreover, the scientific embrace of polygeny in America cannot be understood separately from the context of slavery.⁵³ While many polygenists were Northerners who did not support the institution of slavery, the polygenist view of heredity and race shored up political and economic justifications for slavery. In regard to black women’s reproductive labor, polygeny was commensurate with the assumption that enslaved people were both naturally maternal (hence an appropriate mammy or wet nurse) and hypersexual (thus necessitating careful supervision by whites).⁵⁴ As April Cherry argues in “Nurturing in the Service of White Culture,”

Although Black women could never be righteous mothers to their own children, they could be used to mother others, as long as those mothering relationships were constrained or supervised by Whites. Under this conception of Black womanhood, Black women could be called on to care for the children of “real” women as servants, wet nurses, and the like.⁵⁵

On a larger scale this hereditary view of race suggested that the enslavement of blacks was legitimate because the inferiority of the “darker races” was inborn and reproducible.⁵⁶ Despite this, many Southern slaveholders were resistant to fully endorse polygeny’s divergence from the Christian origin story, and as a result this theory never took hold as a dominant narrative of slavery in the mid-nineteenth century. Defenders of slavery did not need to rely on polygeny alone as a scientific justification for the enslavement of black people; indeed, a subset of monogenists also argued that the degeneration of African races legitimized their enslavement.⁵⁷

This alleged inferiority was mapped onto the bodies of African women from the point of first contact in order to justify their labor, both “productive” (in homes and fields) and “reproductive” (as mammies and wet nurses). Jennifer Morgan examines both types of work in Laboring Women, and contends that “Europeans had a tradition of identifying Others through the monstrous physiognomy or sexual behavior of women,” with writings that repeatedly referenced “long-breasted” women with unmatched fecundity such that “the shape of her body marked her deviant sexuality and both shape and sexuality evidenced her savagery.”⁵⁸ As a result, travelers to Africa and the colonies (p.101) expected to encounter the deviant female sexuality of African and enslaved women, marked by sagging breasts, hyperfertility, and painless childbirth.

This continued reference in literature, letters, and art to African women’s sexuality and physical difference was central to the growing need for enslaved people, and the knowledge that Africans would serve this need. Morgan contends that “African women’s Africanness became contingent on the linkage between sexuality and a savagery that fitted them for both productive and reproductive labor.”⁵⁹ This ideology marked black women as both hypermaternal and hypersexual, two constructs that were traditionally considered binary opposites. The fetishization of the breast marks a particularly loaded point of intersection between sexuality and savagery, the maternal and the monstrous. If the breasts of African women served as an icon of their fitness for enslaved labor, then this iconicity would seem to distinctly justify and naturalize their role as wet nurses for physically delicate and morally elevated white women.

Cross-racial wet nursing is a telling indication of the value of black women’s reproductive labor because laws regulating intimate cross-racial contact speak to the ways Americans have constructed categories of race.⁶⁰ Although cross-racial wet nursing was not adjudicated by law, the difference in how cross-racial wet nursing and heredity were understood within various political and economic systems in the country (i.e., slavery versus an urban market economy) suggests that the meaning of race—and even the interpretation of science—was inseparable from the political and economic interests of the dominant class. Members of the white dominant class in the New World were deeply invested in legislating interracial contact in order to differentiate themselves from enslaved people and other people of color: “enslavement on the basis of racial heredity forced a social and juridical identity upon men and women of African descent that also defined the parameters of slavery in American colonies.”⁶¹ While white elites used the law to ensure that the children of slaves would be born into slavery, or to punish acts of miscegenation between white women and African men, cross-racial wet nursing was condoned in the geographical and political context in which it provided the greatest benefit to the dominant group. White populations in the South and North were in certain ways “doing” race differently, and (p.102) interpreting—as well as producing—the knowledge necessary to justify their reproductive labor practices.

Nancy Stepan and Sander Gilman argue that when racial science and political life were congruent, the tenets of racial science went “virtually uncontested” by the mainstream scientific establishment.⁶² This argument points to the interaction between scientific epistemology and hegemonic social norms. The variation in social acceptance of the theory of lactational heredity in the United States at a specific historical moment supports the hypothesis that when racial science and political power were incongruent, the same racial science was not passively accepted. It seems quite remarkable that two such contradictory views could take root and enjoy scientific support simultaneously. What this suggests is that popular views of race do not merely parrot or passively integrate scientific findings; instead, views on race are produced interactively within networks of power that include economic, political, sexual, and gendered dimensions.

Although the practice of cross-racial wet nursing sharply decreased after the abolition of slavery in 1865, the reproductive labor of women of color as domestic workers for white families remained consistent. After emancipation, many black women worked outside the home as domestic servants, laundresses, or sharecroppers in labor-intensive jobs that limited time spent with their own children in their own homes.⁶³ Black families were reliant on the agricultural labor of women in the rural South; in 1870 more than four out of ten married women were employed, mainly in agriculture, while over 98 percent of their white counterparts listed their occupation as “keeping house” on the census.⁶⁴ In 1910 more than 50 percent of all black women were engaged in paid labor, and one-third were domestic workers. Over half of black women worked as domestic servants by 1920, and three out of five were so employed by 1930. While this number decreased after World War II as a result of changing employment opportunities for women, in 1960 one-third of working black women held jobs in “traditional occupations.”⁶⁵ As April Cherry argues, “the nature of the work that Black women were expected to perform did not change after slavery. African American women have continued to perform affective labor under the constant supervision of White people, including the rearing of White children as mammies, nannies, and daycare providers.”⁶⁶

(p.103) The image of women of color as natural caretakers for white children continues to have a deep impact on the American psyche. It is important to note that the romanticization of black women as mammies emerged post-Reconstruction, produced by white Americans in part to retroactively justify slavery as a system in which kindly masters provided benign protection to devoted slaves.⁶⁷ That this nostalgic reverence for the mammy did not materialize until it was politically and socially expedient is further evidence that ideologies of race and gender prove malleable in the service of maintaining hegemonic norms. In Mammy: A Century of Race, Gender, and Southern Memory, Kimberly Wallace-Sanders notes that the image of the mammy is one in which the black caregiver not only embraced her white charges wholeheartedly, but in fact loved these children more than her own. Wallace-Sanders contends that “her [the mammy’s] behavior and maternal status are inextricably linked when her biological (black) children function only to reaffirm her attachment to her surrogate (white) children.”⁶⁸ This perception that black women are natural caretakers for white children and even prefer them to their own continues to serve a function in American society despite the academic and political deconstruction of this racist and deeply gendered stereotype. Representations of black womanhood in the United States are overdetermined by stereotypical images of black motherhood; in addition to the mammy, the figures of the matriarch, jezebel, and welfare queen continue to frame public perceptions of black women.⁶⁹

Moreover, the supposed wellspring of love and nurturance that is attributed to black women in relation to white children has been expanded to encompass a larger segment of women of color. After 1965, the passage of more liberal immigration laws led to an increase in immigration by women from Latin America and the Caribbean, and as social movements paved the way for greater employment opportunities for African Americans, immigrant women filled the gap in domestic service.⁷⁰ This “feminization of migration” has contributed to the surplus of “Third World” women serving as domestic workers for wealthy Western families.⁷¹ As Arlie Hochschild argues, “Marx’s iconic male, stationary industrial worker has been replaced by a new icon: the female, mobile service worker,” and surrogacy is an extension of this shift.⁷² As a form of what Cooper and Waldby term “clinical labor,” reproductive services are contracted out along lines that are stratified by gender, race, and class.⁷³ (p.104) Cross-racial gestational surrogacy arrangements involving women of color and white intended parents in the United States are entrenched in the history of racialized reproductive labor, and like cross-racial wet nursing, the scientific and political justifications of cross-racial surrogacy prove malleable to benefit the reproductive desires of the dominant white majority.⁷⁴

The influence of race in reproductive labor today is highly negotiated. Couples pick and choose what elements of identity they interpret as heritable, embracing those aspects of dominant scientific thought that are congruent with their own reproductive “choreography” and downplaying those that are not.⁷⁵ During the era of cross-racial wet nursing, multiple ideologies of racial “transmission” coexisted in the same time and place. The determining factor in whether a population would embrace or reject these theories was not based purely on the scientific evidence provided, nor was the evidence itself politically and socially neutral. These competing ideologies were able to coexist because different segments of the population were invested in the racial politics of reproductive labor in markedly disparate ways, and could perhaps shift their commitment to racial ideologies depending upon context. I contend that this phenomenon, what Charis Thompson calls “strategic naturalization,” is also evident in contemporary legal negotiations over kinship in gestational surrogacy arrangements.⁷⁶ Thompson discusses strategic naturalization in terms of how ART users (including both surrogates and intended parents) negotiate the relationship between the natural and the cultural. This term also applies to the strategic deployment of scientific theories in the arena of reproductive technologies, such as the impact of gestation, genetics, and bonding. The legal cases that I analyze suggest that the courts have a vested interest in maintaining hegemonic ideologies of race, gender, and family, and that they have exercised their authority to protect these interests. Two legal cases, Johnson v. Calvert and Marion County Division of Children’s Services v. Melinger, demonstrate how coexisting and competing ideologies of maternal-fetal relations, gender, and race are strategically naturalized in order to shore up dominant beliefs about race and kinship that are put into question by ARTs.

(p.105) Johnson v. Calvert

To review, in a gestational surrogacy arrangement the surrogate shares no genetic connection to the prospective child; she is implanted with a fertilized embryo made from sperm and egg of the prospective parents or donors. Nonetheless, in the case of cross-racial gestational surrogacy, the implantation of the embryo initiates a form of intimate cross-racial contact; just as the hormones of the wet nurse produced milk to nourish her charge, the developing fetus is reliant upon the placenta of the pregnant woman to sustain life. Cells also cross the placenta during pregnancy in a process known as “microchimerism,” traveling both from the fetus to the pregnant woman and vice versa. These cells have been found to migrate into the tissues and organs of the pregnant woman, including her bone marrow, skin, liver, blood,⁷⁷ and even brain.⁷⁸ Without assessing the implications of these more recent scientific findings, it is clear that the relationship between surrogate and fetus is biological, even though a genetic connection is not shared.

A careful balance is orchestrated in the field of reproductive technologies between the increased acceptability of interracial contact through gestational surrogacy and the existing impediments to racial mixing at the level of gametes. In the shorthand of the ART industry, race is frequently mapped onto gametes, gametes represent genetics, and genetics are coded for kinship; as this suggests, in cross-racial gestational surrogacy the significance of racial difference is more than skin deep. This import is revealed in what is perhaps the second-most widely known case of contested surrogacy after that of In re Baby M in 1988—Johnson v. Calvert in 1993. The Johnson v. Calvert case has proved compelling to feminists for a number of reasons: as an indication of the public policy response to surrogacy as a “social problem” in the United States, as a symptom of the contemporary struggles to define kinship, and as an extension of the exploitation of black women’s bodies during slavery, amid others.⁷⁹ While my analysis is indebted to these significant contributions, it will focus on the way that coexisting and competing scientific narratives of genetics and maternal-fetal subjectivity take precedence over one another depending upon their capacity to shore up (or occasionally challenge) dominant, hegemonic ideologies of race, kinship, and gender. Johnson v. Calvert demonstrates this through the selective (p.106) privileging of genetics over gestation, despite popular and scientific attention to the impact of “bonding” and the uterine environment.

The events leading up to the Johnson v. Calvert trial(s) began with a contract signed between a married “white” couple, Mark and Crispina Calvert, and an African American woman named Anna Johnson.⁸⁰ Johnson agreed to act as a surrogate for a sum of $10,000 plus a life insurance policy. The embryo Johnson carried was created using the gametes of both Calverts. Thus, Johnson was not genetically related to the prospective child. The relationship between Johnson and the intended parents rapidly deteriorated; Johnson felt that the Calverts were not supportive during her difficult pregnancy, while the Calverts accused her of hiding a history of miscarriage and stillbirth. Johnson sent the couple a letter prior to the birth of the child stating that if they did not immediately pay her in full she would consider the contract void and would not relinquish parental rights.⁸¹ As a result, both parties filed suit to declare legal parentage of the fetus.⁸² The significance of this lawsuit exceeded the interests of the two parties; it was also the first time a gestational surrogate had filed for custody. The case would thus set legal precedent and alter the surrogacy landscape of California, and the nation.⁸³

The case was heard at three levels of the court system in California: superior or trial court, appellate court, and the California Supreme Court. In a dizzying legal quandary, both Crispina Calvert and Anna Johnson claimed legal motherhood of the child under the same statute: California’s Uniform Parentage Act (UPA). The UPA was initially intended to protect “illegitimate” children by determining paternity regardless of marital status, but also states that the woman who gives birth to a child is that child’s natural mother.⁸⁴ Johnson claimed that this wording established her as the legal mother, while DNA tests incontrovertibly confirmed that Calvert was the genetic contributor of the egg, and thus the “biological” mother. The trial court ruled that the Calverts were the “genetic, biological, and natural father and mother,” that the contract was legal, and that Johnson had no parental rights.⁸⁵ As I will discuss further, this slippage between biological and genetic worked to position only one potential mother (Crispina Calvert) as having a “biological” connection to the child despite the deeply embodied relationship between the pregnant woman (Johnson) and the fetus.

(p.107) The appellate court, however, employed an unusual reading of the UPA to determine whether Anna Johnson or Crispina Calvert was the “natural” mother. While the UPA states that the woman who gives birth to a child is that child’s legal mother, the appellate court interpreted the act to reinforce genetics over gestation, confirming the conclusions of the trial court. The California Supreme Court, in contrast, held that while the UPA recognizes both genetics and gestation as potential determinants of maternity, when both are at issue (Calvert as the genetic mother and Johnson as the gestational mother), then she who intended to raise the child is the legal mother. Because Johnson had not intended to parent when she entered the contractual agreement with the Calverts, she had no legal claim to motherhood.⁸⁶ Moreover, the court ruled that gestational surrogacy is not counter to public policy and that termination of the parental rights of the surrogate is not unconstitutional.⁸⁷ These rulings would provide precedent for future surrogacy-related court decisions and mark California as a surrogacy-friendly state.

Efforts by the Calverts’ legal representation to position Johnson as outside the natural, biological nuclear family also served to erode Johnson’s claim to motherhood. The courts refused to legitimize the potential of reproductive technologies to complicate kinship, specifically the fractioning of motherhood into multiple genetic, gestational, and social components. Superior court judge Richard Parslow was firm in his assertion that the child could not have two legal mothers, a situation that he described as “ripe for crazy making.”⁸⁸ Using rhetoric that situated Johnson as a nonmother, Parslow drew analogies between Johnson’s role as a surrogate and other, more familiar adult-child relationships. Parslow argued that Johnson was like a wet nurse or a foster parent, a “genetic and hereditary stranger” who “provided care and nurturing during the time the natural mother couldn’t care for him.”⁸⁹ As the legal theorist Deborah Grayson argues, this framing not only delegitimized Johnson’s maternal claims, but also firmly resituated her within the “appropriate” relationship between a black woman and a white child. Grayson argues that when the judge compares Johnson to a wet nurse, “in addition to having demeaning racial undertones, by employing the available language of servitude the phrase also works to resituate Johnson in her place as a laboring black body. In so doing, the history of conflating (p.108) African American women’s reproductive labor with their labor as workers is recalled.”⁹⁰

It is significant that Parslow compared Johnson to a wet nurse because of the historical connotation of wet nurses as economically underprivileged, morally suspect, “mercenary hirelings.”⁹¹ Historically, wet nurses were viewed as a potential threat to the stability of the “legitimate” nuclear family; for Parslow, Johnson perhaps materialized as a contemporary successor to this destabilizing figure. This language does situate Johnson within the history of black women’s reproductive labor in the United States. However, Parslow is not as much conflating reproductive labor with other types of work as actually differentiating between maternal labor (what a mother does for her child) and “work.” If Johnson is like a wet nurse, then the labor that she engages in is paid labor, separated from the unpaid, affective labor of mothering. Parslow’s statement assumes that the compensation Johnson received as a surrogate places her squarely in the service economy, categorically excluding the possibility of emotional connection or authentic maternal investment. This thinking taps into feminist debates over surrogacy that stemmed from the Baby M case, in which feminists disagreed on whether reproductive labor was a unique type of work, one that could not be legislated along the same lines as other contractual wage-based forms of employment. By parsing out the two types of labor and situating Johnson’s labor as nonmaternal (indeed, Parslow refers to Johnson as “a host in a sense”), the judge circumvents the threat posed by blurring these boundaries.⁹²

The “likeness” of the child to his genetic parents, the Calverts, was also posited as a commonsense marker of legitimate kinship in the discourse surrounding the trial. It is important to note that despite Johnson’s self-identified mixed-race heritage, the media and the courts read Johnson as simply “black,” while the Calverts were routinely identified as a “white” couple, disregarding Crispina Calvert’s Filipina heritage. The race of the participants was simplified in a way that upheld the privileges afforded to whiteness; according to the ethnographer Khiara Bridges, this racial “flexibility” is central to the persistence of race as “an organizing principle of U.S. society,” such that “race has had to be flexible enough to be manipulated in multiple and frequently contradictory ways, as required by the exigencies of the day.”⁹³ This racial simplification was bolstered in another respect: as a dark-skinned woman, (p.109) Johnson was marked as visually Other to the “white” baby, disrupting the normative picture of a traditional nuclear family. DNA, invisible to the naked eye, was mapped onto the visible and naturalized as a marker of biological kinship through reference to phenotype. This correlation between physical likeness and familial bond implicitly delegitimized Johnson’s claim to motherhood.

The media picked up on the question of “likeness,” quoting Crispina Calvert as saying that the baby “looks just like us,” while her husband described the trial as “our blackest nightmare.”⁹⁴ When Crispina Calvert referenced “likeness” as shorthand for her shared genetic connection to the child, the unspoken assertion was that baby Christopher was not like Johnson, and that Johnson’s skin color was evidence that the child did not belong to (or with) her. As Grayson argues, Crispina Calvert’s statement was not only one of belonging, but also of exclusion: “Christopher’s likeness serves not only as a (meta)physical and conceptual link indicating rights to parentage but also because likeness operates as a sign for blood—for the closed, racialized membership of family and race.”⁹⁵

In the United States, race has historically been attributed through the rule of hypodescent, meaning that an individual of mixed-race heritage is ascribed the racial status of the less privileged group. Following this logic, to declare Johnson the legal mother of baby Christopher would have made the boy black.⁹⁶ Finding the Calverts to be the legal parents of the child not only shored up traditional definitions of family, but also maintained socially constructed boundaries of race by refusing to imagine a context in which a black woman could be the mother to a white child.⁹⁷ In this instance, the raced body of the surrogate can be read as a text that marks her liminality both socially and legally; whether knowingly or not, white intended parents benefit from the racial “difference” inherent to cross-racial surrogacy arrangements. The law has the potential not only to shore up hegemonic ideologies of class, race, and gender but also to produce narratives that can narrow the definition of “mother,” “father,” or “family,” thus reining in the potentially destabilizing effects of ARTs.

While these factors eroded Johnson’s claim to motherhood, she also tapped into psychological theories of prenatal maternal-infant bonding to legitimize her claims. While these theories enjoyed extensive scientific and popular currency at the time of Johnson’s trial, her claims to have (p.110) bonded with the child were largely met with skepticism. Johnson was accused of harboring ulterior motives for seeking custody, including greed and attention; Mark Calvert raised these concerns in the press, saying that “the only bonding Anna Johnson has is with your television cameras.”⁹⁸ Johnson’s claim to motherhood as based on the physical labor of pregnancy and birth, which has traditionally been overdetermined as “natural” and “essential” to womanhood, was denaturalized. From the perspective of the Calverts, their future child was already an individual at the time that the embryo was implanted in Johnson’s womb, a product of their uniquely combined genetic inheritance. This assumption points to a significant complexity raised by the case; in gestational surrogacy arrangements, maternal bonding theories compete with other interrelated ideologies of fetal subjectivity, including fetal personhood and genetic essentialism. Genetic essentialism, in which cultural meanings of the gene conflate with the scientific or biological, “reduces the self to a molecular entity, equating human beings, in all their social, historical, and moral complexity, with their genes.”⁹⁹ The concept of the gene has taken on such weighty symbolism in contemporary culture that its value has eclipsed the gestational, standing in as a metaphor for identity, self-hood, and familial relationships.¹⁰⁰ The selective dismissal of bonding in favor of genetic essentialism demonstrates that while competing and often incompatible ideologies coexist in the reproductive arena, the authoritative weight attributed to them is determined by their relationship to the dominant social order.¹⁰¹

Johnson claimed that she had unexpectedly begun to bond with the fetus during her pregnancy, culminating in her inability to abide by the contract that she had signed and surrender the child to his genetic parents.¹⁰² Her lawyers attempted to shift the focus from genetics to gestation by pointing to the effects that a birth mother has on the fetus, including the size and shape of the child’s brain, arguing that “Baby Boy Johnson is not the same baby that would have emerged from any other birth mother’s womb.”¹⁰³ The contention that the gestational period can have life-altering effects on a child is deeply gendered. As Rayna Rapp argues, on the surface the discourse of genetics has an “egalitarian nature” in that both the mother and father contribute equally, yet this “is held in tension with a second popular, pervasive, and nonegalitarian idea, the highly gendered notion of maternal responsibility.”¹⁰⁴ Men are (p.111) perceived to be responsible for providing the genetic material, but their behavior during pregnancy does not affect the development of the fetus; women are held responsible for “quality control.”¹⁰⁵

This focus on gestational environment can become a point of contention in surrogacy arrangements, with conflicting interpretations of risk and safety between intended parents and gestational carriers. While the discourse of genetic determinism suggests that the future of the fetus is largely predetermined by the contributions of the intended parents, warnings about gestational environment point to the potential dangers of the womb. The focus on the supposedly risky behaviors of pregnant women, when taken to extremes, has led to interventions such as court-ordered Cesarean sections and prison terms for prenatal drug use. However, the implications of gestational environment do not end at these common “external” factors such as drugs and alcohol. Recent publications also (controversially) contend that severe psychological stress during pregnancy correlates with lifelong problems for children, including welfare dependency, schizophrenia, and generational poverty.¹⁰⁶ The field of epigenetics also demonstrates that “epigenetic processes operate in pregnancies such that they impact hereditary traits without changing the genetic code” such that surrogates “are establishing a biological connection with the fetus they are gestating, a connection that appears to last for decades.”¹⁰⁷ Even seemingly innocuous pregnancy cravings for salty snacks can have supposedly dire consequences for a child’s health. A recent article in the New York Times that begins with the definitive-sounding headline “Bad Eating Habits Start in the Womb” cites research that the consumption of junk food during pregnancy (examples include Cheetos, Nutella, and Froot Loops) results in children’s desensitization to fatty and sweet foods. A researcher quoted in the article likens this type of desensitization to “the analogy of someone who is addicted to drugs,” needing more and more of the offending substance to get their fix.¹⁰⁸ In a social milieu in which the management of weight is routinely referred to as a “war on obesity,” the bodies of pregnant women are being placed on the front lines.

This focus on gestational environment has the potential to reconfigure spatially the danger to the fetus from external environmental factors (largely outside a woman’s control) to the interior of the body, the uterine environment. As a reflection of this shift, the site of intervention (p.112) moves from social-structural factors to individuals, particularly women. An inherent maternal-fetal conflict is assumed when the womb is posited as a vector of risk, in which the safety of the fetus is threatened, not by poverty, pollution, or institutional racism, but by the mother.¹⁰⁹ Indeed, the fate of the fetus can be (and is) extrapolated to reflect the fate of society when conditions such as cancer, obesity, and mental illness are linked to gestation. As Bernice Hausman argues in Viral Mothers, “Pregnant and lactating women become the focus of attention within risk societies because fetuses and infants are seen as the innocent victims of modernity’s side effects. They become exemplars of humanity in its most pristine form, and women’s bodies are the vehicles for their contamination.”¹¹⁰

The discourse of pregnant women as vectors of risk is particularly significant for surrogacy research because surrogates are engaged in paid reproductive labor. Because surrogates are compensated, they are arguably more likely to encounter surveillance during pregnancy than most women, and they often sign contracts regarding their prenatal behavior. Johnson’s lawyers attempted to tap into the less sinister aspect of gestational environment by contending that her unique contributions to the baby in utero constituted a claim to kinship that could rival, or at least parallel, genetics. Given that one of the first studies to contribute to the field of so-called fetal origins was published in 1989 (positing a link between low birth weight and adult heart disease), in addition to the research cited by Johnson’s legal team, this concept would not have been entirely foreign to the court.¹¹¹ Again, the assertion that Johnson made a significant contribution to the development of the fetus was paired with the argument that she had bonded with the fetus in the later stages of pregnancy, a contention that had also found popular and scientific support. The idea that a woman could bond with a fetus prior to its birth was not merely a popular sentiment celebrating “maternal nature,” but was grounded in scientific studies that alleged medical evidence of this connection. Both abortion and infertility discourses of the 1980s presumed that maternal nature was present at the core of all women, and was “activated” by gestation.¹¹² These theories contributed to studies on the effects of ultrasound on maternal bonding.

It was not until the 1970s that the term “bonding” was first adopted in the United States, and in its initial application “referred quite exclusively (p.113) to the relationship between a mother and her infant.”¹¹³ Theories of maternal-infant bonding were first published in the United States beginning in 1972 with an article in the New England Journal of Medicine. The research therein claimed that mothers who are allowed sixteen hours of postnatal skin-to-skin contact with their baby develop better mothering skills, and have infants who score higher on developmental tests. The theory was built on the belief that a sensitive period exists after birth in which a woman’s body produces hormones that affect her ability to bond with the infant. Babies who are separated from their mothers during this sensitive period will allegedly fail to bond, leading to developmental delays during infancy, emotional problems during childhood, and even juvenile delinquency and criminal behavior later in life.¹¹⁴

The aforementioned definition of bonding stemmed largely from scientific research led by pediatricians. However, the evidence from which much research on ultrasound and bonding is based is limited to two questionable sources. These texts, dating from 1982 and 1983, consist of a study in the Journal of Psychosomatic Obstetrics and Gynecology and a letter to the editor published in the New England Journal of Medicine. The letter, authored by two doctors, suggests that viewing an ultra-sound might initiate bonding in pregnant women and thus decrease the likelihood that she will terminate the pregnancy. This hypothesis was derived from the doctors’ observation of two women who underwent ultrasound during the first trimester, viewed the image of the fetus, and subsequently chose not to abort. Despite the limited evidence and lack of peer review, the letter has been cited in many later articles as a “study” providing proof of maternal bonding via ultrasound,¹¹⁵ or what Rosalind Petchesky calls the “visual bonding theory.”¹¹⁶ Petchesky argues that given our visually oriented culture, pictorial representations of the fetus are a powerful means by which anti-abortion forces propagate the discourse of fetal personhood.¹¹⁷ Visual bonding theories suggest that women are dependent upon medical and technological intervention in order to form emotional attachments with the fetus during pregnancy, and that while is it natural for women to bond, in the contemporary culture of legalized abortion, women can no longer be entrusted with this task.¹¹⁸

Bonding theories were well known at the time of Johnson’s trial, and not only in academic settings. The New York Times, for example, (p.114) published numerous articles on bonding during the years surrounding the trial, including topics such as the importance of scent in maternal-infant bonding, the complications of bonding for imprisoned mothers, and an opinion piece stating that “from the moment a pregnant woman thinks of herself as a mother, she begins bonding with her unborn child.”¹¹⁹ The ubiquity of this discourse provided Johnson with a medical and social justification for her actions, one that could potentially counter the Calverts’ genetic ties to the child. While gestational surrogacy is a nontraditional route to motherhood, Johnson was tapping into a sacred narrative, that of pregnancy as a transformative journey that reveals the maternal nature at the heart of all women.¹²⁰ Indeed, the courts did not dismiss the significance of Johnson’s role in producing baby Christopher. Judge Parslow described Johnson’s contribution to the development of the child as “substantial,” and the California Court of Appeals stated,

While the woman is pregnant, she shares most of her major bodily functions with the child. For some time after birth the child retains and uses the woman’s life-preserving tissue, cells, blood, nutrients and antibodies. The woman protects and nourishes the child during pregnancy, and, for good or ill, can permanently affect the child by what she ingests. The contribution to the child’s development by the woman who gave it birth is indeed … profound.¹²¹

If Johnson’s contribution was “substantial” and “profound,” then why were her claims to have bonded with the fetus dismissed? When asked about Johnson’s bond with the child, a lawyer for the Calverts argued that Johnson was trying to “steal” the Calverts’ baby, and asked sarcastically, “What miraculous epoxy was used to create a bond?”¹²² It is important to note that the Calverts’ legal team did not only dismiss the possibility of Johnson having bonded with the fetus, but also provided an alternative explanation for why the baby belonged with the Calverts: the importance of genes in determining identity. It was this discourse of genetics that would capture the imagination of the courts and the media, seemingly at the expense of alternative frameworks. Both narratives held political, scientific, and cultural currency at the time of the trial, and they commonly coexist in discourses of maternity (women (p.115) visually bond with their own “flesh and blood”). Genetic essentialism trumped gestation in Johnson’s case not only because of the visual signifiers of racial difference, but also because the discourse of genetic essentialism shores up hegemonic definitions of kinship that are inseparable from race.

The ultimate decision by the California Supreme Court was that both women had legitimate claims to motherhood, but that intent would determine final custody. In shifting the narrative from gestation versus genetics to an intent-based approach, the California judicial system created a precedent that could favor “intended parents” (as this appellation suggests) over even traditional surrogates or egg donors who would have a genetic claim to custody.¹²³ Nonetheless, the previous courts had both privileged genetics: the trial court had declared the Calverts the “genetic, biological, and natural” parents (emphasis added) and the trial court judge even used genetics to position the Calverts’ parental rights as more secure than those asserted by the intended parents in the Baby M case (a case of traditional surrogacy), because “in this case [Johnson v. Calvert] we have a family unit, all biologically related.”¹²⁴ Parslow emphasized the seemingly deterministic nature of genetics, noting that “all sorts of things develop out of your genes,” from identity, immune system, and intelligence to “how you walk, talk, and everything else,” and added that Johnson and the child were “genetic strangers.”¹²⁵

The appellate court likewise concluded that genetics influence both the physiological components of the body and identity, stating that “it is now thought that genes influence tastes, preferences, personality styles, manners of speech, and mannerisms.”¹²⁶ It follows that the judges’ deterministic view of genetics also influenced the conclusion that motherhood was biological, not social. Although Johnson did not dispute that she was not the genetic mother of the child, a blood test proving this was interpreted as conclusive evidence of (non)maternity, such that the lab report

flatly excluded Anna as “not the mother” of the baby boy. … In light of Anna’s stipulation that Crispina is genetically related to the child and because of the blood tests excluding Anna from being the natural mother, there is no reason not to uphold the trial court’s determination that Crispina is the natural mother. She is the only other candidate!¹²⁷

(p.116) Both the trial and appeals courts made repeated reference to the importance of protecting the stand-alone family unit from infringement. This was often framed in terms of an unwavering understanding of motherhood as singular. As the preceding quote suggests, the courts insisted that a child could not have two mothers. Judge Parslow also stated clearly, “It’s not my intention (for the child) to be raised by two mothers. I find the three natural parents’ contention is really not in the best interests of the child,” in part because it would be “confusing” for an infant, “having two people, two mothers feeding, holding, caring for the child.”¹²⁸ This argument ignores the proliferation of nontraditional families in the United States, including the growing number of queer families in which two women co-parent, or the tradition in many African American communities of what Patricia Hill Collins calls “mother-work,” where “mothering is conceptualized as a form of cultural work that incorporates the mothering relationships of non-blood relations as well.”¹²⁹ This oversight is productive for the courts as part of a larger project to circumscribe the definition of family in order to maintain the hegemonic norm of the white, heterosexual, middle-class nuclear family.¹³⁰

Moreover, the California Supreme Court reinforced an “either/or” framework of motherhood by arguing that any parental rights “given” to Anna Johnson would necessarily be taken away from the Calverts. The court imagined that adding more kin would subtract from both the legal rights and exclusive relationship between child and genetic parents, such that “any parental rights Anna might successfully assert could come only at Crispina’s expense” and would “detract from or impair the parental bond enjoyed by Mark and Crispina.”¹³¹ The latter statement is of particular interest because it posits bonding as a “natural” and important aspect of parental-child relationships. The implicit assertion that the Calverts would bond with their genetic offspring in a way that Johnson could not also furthers claims made by the lower courts that passing on your own genes can create a “profound psychological bond” and that bonding is the natural purview only of married, heterosexual couples.¹³² The appellate court even goes so far as to entirely dismiss an opinion by the American College of Obstetricians and Gynecologists (ACOG) cited by Johnson’s lawyers, which had found that the genetic link between intended parent and child held less weight than that between surrogate (p.117) and fetus. The court disregarded this claim, contending that the ACOG’s interpretation of the Uniform Parentage Act “does not depend on what a group of doctors, however distinguished and learned in their field, think the law ought to be.”¹³³

This quote is significant because it demonstrates the way scientific “evidence” was selectively weighed by the courts: the same court took “evidence at trial” to demonstrate genetic determinism, while dismissing the significance of the gestational relationship even when proposed by the leading professional organization in obstetrics. In Johnson v. Calvert, shoring up the boundaries of the traditional family also meant reconstituting the color line by ensuring that a black woman could not be recognized as the mother of a white child. Yet in order to reinforce the social categories of kinship and racial difference, the courts turned to science. The supposed biological imperative of the Calverts to raise their own genetic offspring trumped a far more ancient biological marker of kinship, the acts of gestation and childbirth. Moreover, Johnson’s appeal to “maternal nature” in the form of an essential bond formed in utero was framed as unnatural for having attached itself to the genetic “property” of an Other.

Cross-racial gestational surrogacy has the potential to destabilize categories of kinship and race by creating the possibility of alternative frameworks; as institutional gatekeepers, these particular courts responded by producing “tradition.” This is not to suggest that the technological advancement of ARTs has a predetermined outcome that will unswervingly enforce hegemonic norms. Because ARTs challenge hegemony in unprecedented ways, courts, legislatures, hospitals, the ART industry, and other institutions do not merely re-create and reproduce, but rather are forming definitions anew while using overlapping discourses of science—often in contradictory ways. Marilyn Strathern argues that the “new actors” of reproductive technologies, including surrogates, intended parents, donors, and medical professionals, “contribute to a field of what might indeed be called new facts.”¹³⁴ The agency of ART users will influence the production of knowledge concerning these technologies and therefore will also impact the shifting discourse of race and kinship.

While this suggests that the scientific ideologies that inform ARTs are necessarily malleable, they are not infinitely so. In Johnson v. Calvert (p.118) , genetic “likeness” was used to foreclose possibilities of alternative kinship formations, and the scientific authority of genetic determinism overshadowed gestation and other social claims to motherhood. In the more recent case of cross-racial gestational surrogacy discussed below, a white intended parent introduced the element of race confusion in a way that bolstered his own claims to legal parentage.

The Adoption of Infants H

In 2005 an African American surrogate from South Carolina named Zaria Nkoya Huffman gave birth to twin girls, nine weeks premature, at Marion County Hospital near Indianapolis, Indiana.¹³⁵ The twins were routinely visited in the neonatal intensive care unit by fifty-eight-year-old Stephen Melinger, the man listed as “father” on their birth certificate.¹³⁶ Melinger, a single man from New Jersey, had arranged the surrogacy through Surrogate Mothers, Inc. of Monrovia, Indiana.¹³⁷ New Jersey was the site of the infamous “Baby M” surrogacy case, and is thus considered “unfriendly” to surrogacy; that state allows for only noncommercial surrogacy arrangements (in which the surrogate is uncompensated), whereas surrogacy contracts in Indiana are neither illegal nor enforceable by law.¹³⁸ While Melinger had a temporary residence in Indianapolis, he planned on returning to his home in New Jersey with the twins once they were well enough to travel. Melinger’s original adoption of the girls in 2006 went unchallenged based on his assertion that he was the biological father, and that the adoption was undisputed by the biological mother, who was alternatively listed as Ms. Huffman and as a twenty-three-year-old white egg donor.¹³⁹

The twins received extended care at the hospital, where Melinger’s unusual behavior and demeanor quickly raised concerns among hospital staff. Employees contacted the Indiana Department of Child Services (DCS) after Melinger accidentally entered the neonatal intensive care unit with a pet dove in his pocket.¹⁴⁰ Melinger claimed that he left the dove in the office area of the hospital and thus did not endanger the fragile children, but hospital staff reported that he had also visited the girls with bird feces on his clothing.¹⁴¹ Melinger’s lawyer and surrogacy agency founder Steven Litz admitted to the Indianapolis Star that Melinger was in the wrong, but downplayed the significance of his mistake: (p.119) “Did he make some silly decisions? Of course he did. He is a part-time magician, and the bird is a pet,” Litz told the paper.¹⁴² Hospital staff also critiqued Melinger’s plan to transport the premature infants without assistance on the lengthy car trip from Indiana to New Jersey. Aware of the rising concerns, Litz filed a motion in court describing the twins as “hard to place” due to their “biracial” status.¹⁴³ Indiana allows “hard to place” children, including siblings and those of mixed race, to be eligible for adoption by out-of-state residents.¹⁴⁴

Further investigations by the state disclosed major inconsistencies in the adoption court records. The investigation revealed that Melinger had obtained both sperm and eggs from white donors, meaning that he was not the genetic father, Huffman was not the genetic mother, and the twins would not be considered “biracial” by contemporary genetic logic. This information raised questions about the legitimacy of the adoption, and also about the overall veracity of statements made by Melinger and the Monrovia surrogacy agency representing him. Litz argued that his agency was involved merely in “hooking everybody up,” but was not responsible for changes made to the agreement after the signing of the contract.¹⁴⁵ Litz also claimed that he was unaware that Melinger was not the biological father until midway through the pregnancy. The trial court voided the initial adoption but later reinstated it, a decision that was affirmed by the Indiana Court of Appeals. The case was then sent on to the Indiana Supreme Court at the behest of DCS; in 2009 the court concluded that the adoption must be repeated in New Jersey, but awarded preliminary custody to Melinger.

The case raised several compelling issues regarding questions of race and kinship in cross-racial gestational surrogacy. Concerns were raised about Melinger’s nontraditional decision to father, and the twins’ race became central to the intelligibility of their kinship status in the courts and the press. The negotiation of gender and race in cross-racial gestational surrogacy arrangements speaks to how society determines who is legible as a parent, how kinship is defined, and what role social institutions play in policing challenges to these hegemonic norms. Moreover, Melinger’s legal team attempted to negotiate the logic of racial heritability in order to ensure his claim to the twin girls; the cross-racial component of the surrogacy arrangement was seized upon in order to benefit the white intended parent.

(p.120) As previously mentioned, Stephen Melinger was fifty-eight years old and single when he arranged the surrogacy contract in Indiana. His age, combined with his marital status (his sexuality remained unclear), could have made it difficult for him to follow traditional avenues for adoption: as one Indiana adoption agent stated, few young women would choose to give their child to a man “older than their grandfather.”¹⁴⁶ During the trial initiated by the DCS investigation, witnesses from Marion County, where the twins were born, “opined the adoption should not be granted because Melinger was too old and did not know how to comfortably interact with premature babies,” according to the Indiana Court of Appeals.¹⁴⁷ While this statement does not clearly indict Melinger based on his sex, subsequent statements made by witnesses make clear that the combination of his age, gender, and marital status warranted careful observation. A state investigator from the program Children in Need of Services described Melinger as a “gentle person,” “earnest and well intentioned,” but found him to be “hesitant and unsure” around the twins and concluded that he lacked “real natural instincts.”¹⁴⁸ A DCS caseworker concurred, suggesting that Melinger undergo a “bonding assessment” to evaluate his relationship with the twins, despite the fact that at the time the assessment was called for he had been separated from the girls for eight months.¹⁴⁹

In the minds of the witnesses, Melinger’s insufficient “natural instincts” were exacerbated by the absence of a female partner. When interviewed by investigators, Melinger’s employer and other individuals in his social network raised concerns about the lack of female “influences and mentors” for the girls. Intended parents in surrogacy arrangements are typically framed as desperate infertile couples, taking any measures necessary to achieve the socially laudable goal of having a child, and single men fit uneasily within this normative framework. Even during an era when women are becoming mothers into their sixties through in vitro fertilization, the specter of a single, older man going to such lengths exceeds the bounds of normative family formation.¹⁵⁰

Unfortunately, the state of Indiana has a precedent for concern over single fathers who use surrogacy; in 1995, a twenty-six-year-old single man named James Austin beat to death the infant child he had obtained through a traditional surrogacy contract arranged in Indianapolis. Austin was convicted of third-degree murder and was sentenced to up to (p.121) twenty years in prison. The traditional surrogate sued Austin and the agency involved for failure to adequately screen the intended father. A relative of Austin’s and witness in the case stated that “society, by permitting an untrained, single young man to buy a day-old baby is partly to blame for this crime.”¹⁵¹ Of course, a far greater percentage of children are victims of assault and domestic violence in traditional households than in families created through surrogacy, yet this case arguably cast a pall on Melinger’s adoption proceedings.

In the end, the Indiana Court of Appeals did not accept the judgments of witnesses that Melinger was too old or lacking in the skills necessary to become a father, and in later hearings in New Jersey, many of Melinger’s associates spoke favorably of his parenting abilities. Nonetheless, the gender and age components of this case reveal how gestational surrogacy and other permutations of ARTs are opening up avenues for alternative family formations to individuals who might face insurmountable obstacles to more traditional means such as adoption. Just as the courts in Johnson v. Calvert had a vested interest in curtailing the possibility of one child with multiple legal mothers, the Indiana courts were challenged to consider whether sex serves as a legal handicap for a white, middle-class man. Gestational surrogacy brings to the foreground the assumptions about sex and gender that undergird the institutionalization of kinship.

In cross-racial gestational surrogacy arrangements in which the intended parents are white and the surrogate is a woman of color, the race of the surrogate is an implicit advantage to the intended parents. The surrogate’s race visualizes and concretizes the “difference” between surrogate and fetus that is crucial to maintaining hegemonic kinship structures, and that can reinforce the primacy of genetic “belonging” when custody is contested. As Kalindi Vora explains, a “genetics-based model of parentage … creates a connection between the intended parents and the fetus, and a distance between the surrogate and guest-fetus.”¹⁵² This distance is made to seem greater when the surrogate is racially “Other” to the fetus. In cross-racial gestational surrogacy arrangements, race serves the purposes of kinship; through racial difference, kinship boundaries are maintained. According to the anthropologist Jonathan Marks, “race—in any guise—is a theory of kinship. It tells you who you are and what you are.”¹⁵³ Kinship “provides the basic social orientation,” (p.122) but it is potentially destabilized and/or threatened by technologically driven forms of assisted reproduction.¹⁵⁴

This is particularly true when reproductive technologies create the possibility for intimate cross-racial contact, as in cross-racial gestational surrogacy; this “threat” then necessitates boundary policing, which operates through the discursive privileging of genetic determinism over environment. The Melinger case in some ways turns this logic on its ear; here, a white intended parent seems to be defying narratives of genetic essentialism by insisting that the children born to a black surrogate are biracial, even after admitting to the courts that the surrogacy was gestational. Was Melinger radically challenging the social order by rejecting the geneticization of race? Can this be read as definitive evidence for the argument that ARTs can be used to unsettle rigid racial classifications? Without foreclosing the possibility that ARTs are capable of the latter, the Melinger case does not provide compelling evidence of the emancipatory potentials of these technologies.

Contradictory revelations were made about the race of the twins throughout the proceedings, which were significant because they could aid in the determination of whether Melinger, as a nonresident and adoptive (nonbiological) father, fit the legal criteria to adopt the girls. As noted above, the original adoption petition listed the twins as “white females” and claimed that, due to concerns about the quality of Melinger’s sperm, the African American surrogate was inseminated with both the sperm of Melinger and an anonymous sperm donor. A subsequent adoption summary submitted by Melinger’s lawyer identified the genetic “mother” of the twins as a twenty-three-year-old white woman, and said that the twins did not fit the legal guidelines defining children as “hard to place.” After it was clear that Melinger’s adoption proceedings would be investigated, Litz submitted an amendment to the order declaring that the girls were hard to place because the surrogate “was African American and that the children were therefore biracial.”¹⁵⁵

One could read this flip-flopping on the issue of the girls’ race as an outright deception motivated by the expediency of having the children labeled “hard to place.” Indeed, this seems to be how the issue was interpreted in media coverage of the case, discussed below. However, Melinger’s lawyer had already acknowledged in the adoption summary, approved by the court on April 29, 2009, that the egg donor was a white woman. (p.123) The statement that the surrogate was African American and therefore the children were biracial was submitted several days later, on May 4.¹⁵⁶ By acknowledging that the egg donor was white, but proceeding to argue that the twins were biracial because the surrogate was black, Melinger’s lawyer implied that race is not entirely determined by genetic inheritance, but can rather be influenced by the environment of the womb. While it is impossible to ascertain the motivations of Melinger or his lawyer, I am more interested in the fact that this strategy was attempted and the way it was received. Whether Melinger and his attorney were purposefully misrepresenting the race of the twins or attempting to define race in nongenetic terms, determining the race of the children was undeniably a central project of the media (and to a lesser extent, the courts).

One way that observers addressed the question of the girls’ race was by “reading” their phenotype. Because Melinger’s narrative concerning the twins’ origin changed repeatedly, reporters frequently described the physical appearance of the twins as shorthand for their presumed race. By doing so, the media shored up the common public perception that skin color is synonymous with race. At least three articles from the Indianapolis Star, a newspaper that covered the case extensively, described the girls in terms of their hair and/or eye color, repeatedly referencing them as “blonde haired and blue-eyed.”¹⁵⁷ The descriptor “blonde haired and blue-eyed” is shorthand for whiteness in American culture. When combined, these traits are meant to represent a singularly white standard of appearance, and in the context of this trial, to stand in mutual exclusivity to blackness. This is reflected in a quote from the article “New Jersey Man Isn’t Biological Father,” in which the reporter matter-of-factly remarks that “the surrogate mother is black. Melinger is white. The babies are white with blonde hair.”¹⁵⁸ The blonde hair of the babies is evidence of the racial descriptor “white,” connecting them in this equation to Melinger and distancing them from the “blackness” of the surrogate. The same article explains that “the twins do not look biracial, according to those who have seen them.”¹⁵⁹ The reporter conflates color and race when assuming that the way the twins look can conclusively determine that they are not “biracial,” a term that could encompass a wide variety of racial variation, skin tones, hair type, and other racial markers.

The legal scholar Angela P. Harris notes that due to the “seemingly natural, unmediated quality” of skin color, it “seems to just be there, a (p.124) natural fact.”¹⁶⁰ The coverage of the twins’ race also intimates that the elision between skin color and race is not only natural but biological. Visual cues can reveal what Melinger was attempting to hide: the “truth” of the girls’ origins, which was inseparable from the “truth” of their race. Again, the question of race serves to answer the question of kinship: one cannot identify the biological mother and father of the twins by looking at the children, but according to this logic one can “know” race through visual markers. If one could visually identify that the twins were white (e.g., have blonde hair and blue eyes), then, as this argument goes, Huffman could not have been the egg donor.

The mutual exclusivity of whiteness and blackness in the discourse surrounding the case can also be found in coverage by the New York Times. In “Building a Baby, with Few Ground Rules,” the reporter Stephanie Saul uses the Melinger case as an example of the lack of regulation in the surrogacy industry. Regarding the issue of race, Saul conclusively asserts, “it was not true that the girls were biracial. The surrogate mother was African American, but the babies she had carried grew from eggs from a white donor. The twins were white.”¹⁶¹ Saul’s statement, while following the accepted logic of genetics and the ART industry, also reifies the assumption that a black woman cannot be the biological mother of white children, that these categories are both commonsense and incommensurate. According to this argument, race is both biological (the babies “grew from the eggs of a white donor”) and also a reflection of kinship (Huffman cannot be the biological mother because the babies are white).

To return to the questions introduced earlier, were Melinger and his lawyer making a radical claim that the twins were mixed-race because they were gestated by a black woman? If so, this would push back against the overdetermination of genes as the sole influence on race and identity, while still positing race as something biological, to be transmitted through gestation in addition to genetics. Charis Thompson makes the argument that surrogate mothers can be interpellated as biological mothers, even in gestational surrogacy:

The embryo grows in and out of the substance of another woman’s body; the fetus is fed by and takes form from the gestational woman’s blood, oxygen, and placenta. It is not unreasonable to accord the gestational (p.125) mother a biological claim to motherhood. Indeed, some have suggested that shared substance is a much more intimate biological connection than shared genetics and is more uniquely characteristic of motherhood, as genes are shared between many different kinds of relations.¹⁶²

Melinger’s claim could be read as a revision to Thompson’s argument, suggesting that what is shared between the fetus and surrogate during the period of gestation is significant enough to affect race as either a biological or social identity category (or both). Anna Johnson made a similar claim in Johnson v. Calvert when she attempted to employ the Indian Child Welfare Act to stop the Calverts from taking legal custody of baby Christopher. Johnson argued that because she had Native American ancestry, so did Christopher, making him ineligible for adoption by a white family. Her lawyer claimed that “Indian blood created this baby; … no one can force her to give it up,” whereas Cherokee and Choctaw officials claimed that tribal recognition is based on “blood, ancestry” and “isn’t created just by being in the womb for nine months.” A tribal attorney stated, “I’d think that if the egg and sperm are from non-Indians, the baby’s blood would be non-Indian too.”¹⁶³ In that case, the Calverts’ legal team and Native American officials thoroughly racialized both genetics and blood, but made a firm distinction between Johnson’s “Indian blood” and the “non-Indian” sperm and eggs of the Calverts.¹⁶⁴

Like Johnson, Melinger employed what appears to be a counterhegemonic discourse of race and ARTs, providing an example of how ARTs refigure traditional ideologies of race and kinship. Yet Melinger’s argument need not be read in this light. Rather, the Melinger case is an example of how intended parents can employ the racial difference of cross-racial gestational surrogacy to make an argument for the legitimacy of their own parental rights. This does not necessarily have to come at the expense of the surrogate, as it did in Johnson v. Calvert, nor is it bound to be successful—indeed, this particular strategy failed in Melinger’s case. Regardless, the race of the surrogate functioned as the catalyst for Melinger’s claim to custody when his own lack of genetic ties was revealed. The surrogate’s Otherness in a white-dominated society was cast as a disadvantage to the children, marking them as “hard to place” through adoption.

(p.126) Racial difference made a difference in how the kinship claims in both Johnson v. Calvert and the Melinger case were legitimated socially and legally. The Calverts were able to tap into the cultural memory of women of color as caretakers (and not mothers) to white children, while Melinger attempted to mark the twins with the race of the surrogate in order to bolster his own kinship claims. In both instances, the white intended parents deployed racial difference, whether successfully or not. What Melinger failed to take into account were the limitations of the malleability of race in public discourse. If the media, judicial system, and other social institutions were unable to pin down the race of the girls, they would become unintelligible. Because negotiations of gender and race speak to the legibility of the family, Melinger was not allowed to be vague or coy about the racial origins of the twins. By making the argument that the twins were biracial, Melinger implicitly challenged the conflation of race and genes; by soundly rejecting this argument, the courts and the media shored up hegemonic narratives of family, race, and belonging.

Throughout this chapter, cross-racial wet nursing and cross-racial gestational surrogacy have been framed as part of the same history of racialized reproductive labor. The middle-and upper-class reliance on the reproductive labor of women of color has remained a relative constant despite shifting ideologies of race, maternity, gender, and maternal-fetal subjectivity. These ideologies are often influenced by science, but scientific theories are not uncritically adopted by the general public; rather, communities negotiate their understanding of these concepts based on their own geographical, historical, and economic locations. By analyzing practices such as cross-racial wet nursing and cross-racial gestational surrogacy, one can extrapolate the ways discourses concerning race, gender, and kinship are influenced by the economic and reproductive imperatives of a given society. Both practices also reveal how racialized and gendered norms are naturalized in ways that shore up hegemonic ideologies of race and gender.

The cases of Johnson v. Calvert and Stephen Melinger’s adoption of “Infants H” reveal that despite claims made by those in the ART industry, the racial “difference” in cross-racial gestational surrogacy is significant. (p.127) The use of a woman of color who is visually “Other” to the child accentuates the likeness between the child and intended parents and the difference between child and surrogate (or in the Melinger case, attempts to appropriate that difference). Just as racial logic proved flexible in neutralizing the intimate interracial contact of cross-racial wet nursing, so does the construction of surrogates as “genetic strangers” naturalize this contemporary practice. (p.128)