We have posed on gestational surrogacy repeatedly on this blog, most recently here. I have been vaguely aware that several European states ban the practice, which seemed surprising to me. Kim Krawiec (right), Charles O. Gregory Professor of Law, University of Virginia, released a new episode of her Taboo Trades Podcast earlier this summer on the topic, and I now have a much better understanding of the intellectual formations underlying hostility to surrogacy on the continent and in international law. I highly recommend the podcast. Have a listen, but prepare to have your mind repeatedly blown.
I can’t do justice to the scholarship that Professor Krawiec’s guests summarize on the pod, but I will try to summarize how the conversation starts. I hope that will whet your appetite to listen to the entire episode and perhaps follow up on the scholarship featured in the show notes. There is ample material here for a seminar or to get a student started on a note topic. The focus is on the sweeping use of “exploitation” to regulate conduct while not being clear on what constitutes exploitation.
Mindy Jane Roseman (left), Director of International Law Programs and Director of the Gruber Program for Global Justice and Women’s Rights, Yale University, started the discussion. She explained that the panelists recently came together at a colloquium to address, as Professor Roseman put it. “the increasing conservative, if not authoritarian, nature of the international space and the use of terms such as exploitation and protection to motivate a revision in thinking around human rights, particularly as relates to gender, sexuality and reproduction.” Professor Roseman provided the example of the 2011 European Union directive on preventing and Combating Trafficking in Human Beings, which now includes new language called “Exploitation of Surrogacy,” which suggests a move towards treating surrogacy as a type of trafficking.
Janie Chuang (right), Professor of Law, American University, Washington College of Law, spoke next, exploring themes that have occupied her since her 2014 article, Exploitation Creep And The Unmaking Of Human Trafficking Law. That work looked at some well-intentioned policies initiated during the Obama administration that resulted in a sort of conflation of trafficking and exploitation, whereby anything that might be considered exploitation could also be labeled trafficking, even though exploitation was not defined. The resulting conflation equates exploitation with modern forms of slavery in ways that are not helpful to the people the policies are trying to protect.
Professor Krawiec then invited Joanne Meyerowitz (left), Arthur Unobskey Professor of History and Professor of American Studies, Yale University, to weigh in. Professor Meyerowitz shared her insights, drawing on her research on self-described feminists who collaborate with the conservative anti-gender movement. These feminists emphasize the dangers of sexuality and especially sexual violence at the hands of men. They characterize forms of sex work, surrogacy, and trans-rights activism as forms of violence against women. Recently, they have found it useful to conflate exploitation and violence against women in the service of their agendas.
Dina Francesca Haynes (right), Executive Director, Orville H. Schell, Jr. Center for International Human Rights; Lecturer in Law (spring term), and Research Scholar in Law, Yale University, next provided more of a practitioner’s perspective on these issues. She works with clients are trying to navigate legal barriers to gaining legal status as immigrants to the U.S. Congress requires that they articulate their need for asylum in terms of language like “exploitation” or “trafficking.” At the same time, Ms. Haynes identifies “regressive leaders” who then use that same language to stigmatize the very people, like advocates for immigrants rights, who are trying to help their clients escape truly awful conditions.
Alice M. Miller (left), Associate Professor (Adjunct) of Law and Co-Director, Global Health Justice Partnership, Yale University, explains what she means when she describes trafficking as both an “accordion crime” and also a palimpsest. The UN Palermo Protocal on trafficking allows states to define trafficking. The concept, and the crime, can thus expand or contract, accordion-like, according to domestic law and practice. The Palermo Protocol is also a palimpsest in that behind its provisions there is a historical backdrop of one hundred years of conventions aimed at banning trafficking of women and girls for the sex trades. The ambitions of the Palermo Protocol seem broader, but the criminal code is inflected with those historical traces.
Those introductions get the ball rolling, and the conversation runs from there and still I feel like we have only scratched the surface of the legal challenges that these scholars have brought together under the theme of “exploitation creep.” It’s a great discussion. Each panelist brought a different and challenging perspective. These sorts of conversations can really inspire law students or young practitioners looking for work that is fulfilling and also feels meaningful, so I recommend this highly and recommend sharing it with students interested in work at the intersection of contracts, international law, gender identity/women’s rights.
