ABSTRACT
Framing the Issue Transnational procreative practices, and in particular cross-border surrogacy, are a challenge to the authorities in Norway, as elsewhere (Inhorn and van Balen 2002). In Norway, surrogacy is not permitted. This not only has to do with a reticence against commercialization of reproduction and concern for the best interests of the child, it is also a question of ascribing proper filiation. This in turn revolves around shifting notions of maternity, paternity, and parenthood; in short, family formation. The nexus for these disputes, I argue, is the significance attributed to biology as a particular kind of truth knowledge (Salazar 2009), in establishing certain relations. As a reproductive practice, surrogacy works differently for men and women: a man can be accorded paternity if he can prove his biogenetic link to the child. However, this is not the case for women. The following example, which mobilized the Norwegian public, illustrates the point (see also Kroløkke 2012). In January 2010, an Indian surrogate mother gave birth to twins for a Norwegian woman. Both donor sperm and donor eggs had been used to conceive the two children. The intending mother – Kari Ann – proceeded to apply to the Norwegian authorities for the right to adopt the twins. When she initially stated that the children were biogenetically hers, it seemed that the adoption process would go smoothly. However, at a later date it was revealed that Kari Ann was not their biogenetic mother. Her application was denied on August 4, 2010 as was her appeal. A year later, Kari Ann was still in India, living with the twins in Goa. Not only was she an illegal resident, but her children were also without papers. They were undocumented and in fact stateless. The Norwegian authorities claimed that the children were Indian (having been born to an Indian woman), whereas the Indian authorities insisted that they were Norwegian. In the meantime, Kari Ann had engaged a lawyer and Norwegian politicians had become involved with her case. In her local community, a support group of grandmothers started a fundraising campaign for Kari Ann and her twins. By April 2011, the Norwegian authorities had worked out a solution and the children were finally able to travel to Norway, having been granted a residence permit. Once in Norway, it was the responsibility of the Office of the Public
Guardian (Overformynderiet) to find a suitable guardian for the twins, who were in theory without parents. Thereafter it was the job of the Child Welfare Authorities (Barnevernet) to find a permanent solution. It is important to keep in mind that it is not illegal for Norwegian citizens to enter into cross-border surrogacy contracts. The issue is how to bring the children legally to Norway. This, in turn, has to do with filiation and the proper ascription of motherhood and fatherhood. It is apparent, at least in the case of Kari Ann, that it is no easy task to establish legal parenthood of children born to a foreign surrogate abroad. Many different people, including the authorities, were enrolled in order to find a solution. Procreative intent is not enough to justify legal parenthood in Norway, all the more so if there is no proof of a biogenetic connection between the intending parent and the child. However, there is another point to be made. In the case of Kari Ann, it is the way in which the children have been brought into being that challenges her parenthood. They are (by the Norwegian authorities at least) viewed as the product of an illicit exchange. And it is the character of this exchange that creates the problem (more on this below). Norwegian law defines the mother as the one who gives birth, irrespective of whether or not the genetic material is hers. It also prohibits egg donation. This has several ramifications. For example: a Norwegian woman in need of an egg may make use of such a service at a fertility clinic abroad. Because she gives birth, she will be considered the mother of the child, despite the fact that the genetic material is not hers. The same holds true for a woman who makes use of anonymous donor sperm. As Norway prescribes the use of known donor sperm, those who prefer an anonymous donor must travel abroad. Again, her maternity will not be questioned. In both situations, the actual genetic make-up of the child is ignored, as birthing is privileged over other (f )acts. The only other way to obtain legal maternity is through adoption. Hence, a Norwegian woman making use of a surrogate – even if, unlike Kari Ann, she has used her own eggs – is precluded from claiming motherhood. Her eggs don’t count. Reproductive intent is not accepted as a legal ground for establishing parenthood. Norwegian citizenship is based (primarily) on jus sanguinis. This implies that children with either a Norwegian mother or father will automatically gain Norwegian citizenship. There is thus a link between filiation, the ascription of paternity and maternity, and obtaining citizenship. This link is activated in transnational reproductive practices. As Kroløkke states: “Biogenetic substances become the building blocks for such fundamental cultural structures as kinning and citizenship” (Kroløkke 2012, 320). In this chapter, I focus on some of the dilemmas that have emerged as a result of surrogacy practices. To begin with, I will, albeit briefly, discuss some salient aspects regarding the legal incorporation of reproductive technologies in Norway.1 I am concerned with two particular developments in the biopolitical domain. The first is the increasing biocentrism or privileging of biological connectedness, with regard to filiation. The other concerns the ways in which maternity and paternity are differently ascribed, and the shifting grounds of proof to
establish the facts of procreation (Strathern 1999). These two developments are intimately connected and may perhaps be seen as a response to the uncertainties that reproductive technologies provoke regarding fundamental notions of kinship and relatedness. However, these tendencies are primarily articulated through – and hence derived from – public discourse and practices such as the legislative process. Those making use of assisted conception may certainly attach other meanings to such procreative events (Melhuus 2007). In other words, there is a tension between what the law permits and what some people actually do. Or, in the words of Campbell, a contrast between “the governance of reproductive intimacy . . . [and] its vernacular negotiation” (Campbell 2007, 98). This discrepancy is made explicit by the existence of a transnational space within which assisted reproductive practices can potentially occur, by the legal void that (at least until 2011)2 makes such practices possible, and by the public debates surrounding them. Regarding the latter, there is no doubt that the media plays – and has played – a significant role in drawing attention to surrogacy practices and the ethical dilemmas these entail. In fact, the media represents an important platform for the many voices concerned with surrogacy, not least for some of the parents of children born to surrogates (e.g., Fosse et al. 2011).
