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The surrogacy question, unresolved: surrogacy policy debate as a hegemonic struggle over rights

The surrogacy question, unresolved: surrogacy policy debate as a hegemonic struggle over rights CRITICAL POLICY STUDIES https://doi.org/10.1080/19460171.2022.2105736 The surrogacy question, unresolved: surrogacy policy debate as a hegemonic struggle over rights a b Jenny Gunnarsson Payne and Mika Handelsman-Nielsen a b School of Historical and Contemporary Studies, Södertörn University, Huddinge, Sweden; Independent research assistant, Stockholm, Sweden ABSTRACT Keywords surrogacy; assisted Sweden is often described as a ‘moderate’ country when it comes to reproductive technologies; legislation and policy on assisted reproductive technologies, being Sweden; policy debate; relatively permissive with regards to their use, but only permitting hegemonic processes them within a strictly regulated framework. The ‘surrogacy ques- tion’, however, remains a polarized issue in media debates and has become a key topic of public negotiation and contestation around the meaning of a range of rights. This article investigates how surrogacy became a topic for policy debate in Swedish opinion journalism between 2009 and 2019. Drawing on discourse theory, the article investigates which, and ‘whose’, rights are mobilized in the debate, as well as how these rights are differently articulated and ‘filled with meaning’. It argues that polarized discourse coali- tions are formed across the political spectrum, and that the absence of explicit legislation on surrogacy has led to a pragmatic ‘split policy’ which keeps both opponents and proponents unsatisfied, keeping the debate alive. Introduction Sweden has often been described as a ‘moderate’ country when it comes to legislation and policy on assisted reproduction, being relatively permissive with regards to their use, but only permitting them within a strictly regulated framework. Sperm donation has been practiced since at least the 1950s, and the first child born from in vitro fertilization (IVF) was born in 1982. The first legislations on assisted reproduction were established soon thereafter: sperm-donation was regulated in 1984, IVF in 1988, and IVF in combination with donated sperm in 1995, and egg-donation in 2003. While initially only available for heterosexual couples, legislation has become more inclusive over time, insofar as that it now also includes access to assisted reproduction for lesbian couples (2005) and single women (2013). Since 2013, transgender patients under- going gender affirmation therapies are entitled to fertility preservation (cryopreservation of gametes). The fact that embryo-donation is permitted since 2018 has also increased the possibilities for the involuntarily childless. Surrogacy – which is still not permitted within Swedish healthcare – remains, however, an unresolved question. Yet surrogacy CONTACT Jenny Gunnarsson Payne jenny.gunnarsson.payne@sh.se Ethnology, School of Historical and Contemporary Studies, Södertörn University Alfred Nobels allé 7, 141 89 Huddinge, Sweden © 2022 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/ licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. 2 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN arrangements are on the rise and the phenomenon has become increasingly visible and normalized in the public sphere. As an increasing number of Swedish residents travel abroad for the purpose, Swedish authorities are solving each surrogacy arrangement by using parts of existing legislation on a case-to-case basis, practicing what best can be called a pragmatic ‘split policy’ according to which surrogacy is not quite forbidden but neither quite permitted (at least within the nation’s borders). The Swedish surrogacy debate therefore offers an interesting case for investigating the role that opinion journalism plays for different interest groups and political actors who are competing in seeking to influence and settle an uncertain policy situation (see e.g. Koch-Baumgarten and Woltmer 2010, 5). The Swedish case offers an opportunity to investigate debates on surrogacy in a highly secularized context with strong (but not uncontested) norms of gender equality and anti-discrimination, in which religious and/ or biologist arguments have generally loosened their grip on policy and legislation on assisted reproduction. Against this background, the article aims to empirically investigate this policy debate in Swedish opinion journalism between the years of 2009 and 2019. Motivated by the overwhelming presence of rights discourse in the debate, we investigate which, and ‘whose’, rights are mobilized, as well as how these rights are differently articulated and filled with meaning by the various actors in the debate, depending on their political ideologies and worldviews. The article also explores how proponents and opponents of surrogacy form so-called discourse coalitions across the political spectrum, demonstrat- ing how the polarization between these coalitions has been sedimented for over a decade, with little sign of change. In the meantime, the absence of legislation has led to pragmatic solutions for dealing with existing transnational surrogacy arrangements – solutions which keep both opponents and proponents unsatisfied, and keep the debate alive. Surrogacy as an unresolved policy issue – background and context Surrogacy was first mentioned in a governmental report in the 1980s, but only to conclude that it was not relevant for Swedish legislation, and that existing adoption legislation would make paid surrogacy illegal anyway (SOU 1985, 5, 33–34). It was not until 2008 that surrogacy emerged more clearly as a contested policy issue, first in the context of the congress decision made by the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights (RFSL) to begin advocating for a permissive legislation. In 2012, the Swedish parliament commissioned an Official Governmental Report which, when published 4 years later, recommended against permitting any form of surrogacy- related treatments in Swedish healthcare. As commercial surrogacy had never really been on the proverbial policy-table, the main risks raised by the Governmental Investigator concerned commercialization as well as potential risks of intra-familial pressure on women to act as surrogates (SOU 2016). Thereby, they argued against the conclusions previously drawn by the Swedish National Council of Medical Ethics (Smer) in 2013, which had recommended permitting altruistic surrogacy between close kin, friends and family (Smer 2013; Gunnarsson Payne 2018). In February 2018, the Swedish Government declared their decision to follow the Governmental Investigator’s recommendation not to change the legislation in favor of CRITICAL POLICY STUDIES 3 surrogacy, and the law since remains the same. In practice, this means that while surrogacy-related treatments may not take place within Swedish healthcare, the practice is not explicitly banned, making it legally possible for Swedish residents to travel abroad for the purpose. While there are no official statistics of how many Swedish children are born through surrogacy, unofficial statistics shows that numbers are increasing. Statistics Sweden (SCB) has estimated that 220 surrogacy-conceived children were registered in Sweden between 2014 and 2018, and the legal firm Napoleon AB has shown that at least 215 children were born this way in 2019 (Canolis 2020). Transnational surrogacy has been made easier and smoother – for those who can afford it. The newly established surrogacy agency Tammuz Nordic Surrogacy set up an office in the capital city of Stockholm in 2016. There is also a consultation and mediation service, Surrogacy Sweden, offering personal and legal support and connecting clients with clinics abroad. In practice, this means that Sweden applies a pragmatic ‘split policy’, whereby – despite it not being permitted within the nation’s borders – several of its state authorities such as embassies, courts, the Swedish migration Agency, and the Swedish Social Insurance Agency are solving each surrogacy case individually, leaning on other parts of the legislation to ensure parental status, citizenship rights for the child, family benefits and parental leave. As surrogacy is increasing, authorities have developed guidelines for best practice concerning how to solve issues of citizenship, parental status, and social insurance (MFoF 2021). The surrogacy policy debate as a hegemonic struggle over the meaning of rights The extent to which media debates affect policy is not settled in research, and appears to be strongly context dependent. Yet, as Sigrid Koch-Baumgarten and Katrin Woltmer have argued, uncertainty regarding policy is expected to make policy makers more receptive to media representations, especially when they are accompanied by ‘sensational images that have the potential to mobilize public opinion up to a point of moral panic’ (which has often been the case with surrogacy as well as other forms of assisted procrea- tion). A policy issue is also more likely to gain media attention in case of clear splits within or between political camps, and once an issue has gained media attention, ‘the dynamic and direction can change dramatically’. Moreover, once a policy issue has become an object of intense debates, it often becomes further polarized, and new actors may join it and take sides (2010, 5). In a study on surrogacy policy debates in Norway – a country which resembles Sweden both in terms of surrogacy legislation and broader cultural issues of welfare, gender equality and LGBTQ-rights – it is argued that issues of biotechnology have been particularly prone to becoming objects of media debate, and that these debates have played a significant role for interest groups to influence policy decisions (Levold, Svingen, and Aune 2019, 5; see also Andersen 2013). Another study on Norweigan surrogacy debates shows great simila- rities to the Swedish debate, especially with regards the issue of the role and responsibility of the state (Nebeling Petersen, Kroløkke, and Myong 2017). As Gunnarsson Payne (2018) has argued, it is also important to consider how such debates co-exist with other forms of media representations. In the Swedish context, it has not been unusual that the 4 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN broadcasting of a documentary has led to a reactivation of the debate in opinion journalism. Additionally, a radio or television reportage is often followed by a debate within the same programme. Such genre combinations adds ‘affective force’ to policy debates by offering personalized stories of surrogates and intended parents with which media consumers can identify (see also Markens 2012; Riggs and Clemence 2013; Gondouin 2018). Opinion journalism is thus an important genre through which the hegemonic struggle of what surrogacy ‘is’ and how it ought to be dealt with by the state can be studied. Following Ernesto Laclau and Chantal Mouffe’s understanding of hegemony, we define it as the construction of a ‘collective will’ which is necessarily constitutive in the formation of the political subjects it simultaneously claims to represent (Laclau and Mouffe 1985). Working within the same tradition, David Howarth has described hegemony as on the one hand ‘a kind of political practice that captures the making and breaking of political projects and discourse coalitions’ and on the other as ‘a form of rule and governance that speaks to the maintenance of policies, practices and regimes’ in a way that that manages to affectively ‘grip’ subjects. Thus policy change tends to result from political struggle between rival political projects and public support is achieved and perpetuated by the construction of different ‘fantasies and ideologies that secure the consent of subjects, as well as complex techniques and tactics’ (Howarth 2010, 310). In analyzing policy debates as hegemonic struggles, it is therefore crucial to consider how different alternatives manage to mobilize positive or negative affect among the public, as well as policy makers. As Mouffe has expressed it, any attempt to theorize politics needs to take political passions and their central role for the construction of collective identities into account, as political discourse ‘has to offer not only policies but also identities which can help people make sense of what they are experiencing as well as giving them hope for the future’ (2005, 24–25). Moreover, like Samuel Chambers has pointed out, the majority of political arguments in contemporary liberal democracies ‘find themselves enmeshed at some point within one of the many overlapping and discontinuous discursive practices within which rights play a central role’ (2003, 149, emphasis added). The appeal to different rights – often, but not always articulated as human rights – serves to gain legitimacy for a specific political claim, thereby universalizing it, in the quest for achieving its hegemonic status (see also Chambers 2003, 2004). To operationalize these insights empirically, we have found Maarten Hajer’s (1993, 2006) concepts of storylines and discourse coalitions particularly useful for studying hege- monic processes ‘in action’. Storylines – ‘condensed statements summarizing complex narratives, used by people as “shorthand” in discussions’ (Hajer 2006, 69) – are central for policy debates; by drawing on culturally recognizable tropes, they play a crucial function in the construction of ‘common sense’, and are effective in mobilizing positive or negative affects for or against a specific phenomenon. Storylines also enable the formation of discourse coalitions, that is, ‘a group of actors who share a social construct’ – in this case surrogacy – without necessarily fully agreeing on all aspects of it (Hajer 1993, 45). The fact that discourse coalitions are organized around a set of storylines provides the very condi- tion for a wider range of actors to ‘act in agreement’, also across ideological worldviews (see also Edenborg 2021). CRITICAL POLICY STUDIES 5 Material, method and selection process The analyzed material consists of opinion journalism from major national newspapers in Sweden in the years of 2009 to 2019. Initial media searches were made from 2005, but no opinion journalism on the topic was found until 2009 (though some news reports on it had been published before). The analysis is limited to the four biggest Swedish news- papers: Dagens Nyheter (DN, independent liberal), Svenska Dagbladet (SvD, independent moderate), Aftonbladet (independent social democratic) and Expressen (independent liberal). A broad search was conducted in databases (Svenska Dagstidningar and Mediearkivet/Retriever), with complementary searches on Google and the newspapers’ websites. The material was read through in its entirety to exclude doublets and articles deemed irrelevant for our analysis. The material was narrowed to include only opinion journal- ism (op-eds, editorials, letters to the editor), ending up with 124 articles. Additionally, a small number of book reviews specifically debating surrogacy were included. Focussing on opinion journalism (in this extended meaning) enabled us to identify explicit argu- ments for or against surrogacy, as well as relevant political standpoints among the signatories and commonly occurring tropes. Who’s saying what? Mapping the Swedish surrogacy debate and its actors Of the 124 texts, 54 articles argue in favor of a legislation that allows surrogacy-related treatments in Swedish healthcare, 56 articles argue against it, and 13 are either explicitly undecided and/or pointing out the complexity of the issue without ‘taking sides’ (Table 1). All newspapers have published a range of arguments both for and against legalizing domestic surrogacy, independently of their respective political leanings. From the very beginning, both sides of the debate have been characterized by a strong presence of interest organizations and NGO’s (largest number of articles), representatives of political parties (second largest number), journalists and authors as well as a smaller number of academics and engaged citizens sometimes writing in their professional role (see Table 2.). As Table 2 shows the debate is largely divided into two antagonistic camps (see e.g. Laclau 2005, 189), which we here understand as discourse coalitions. In the discourse coalition promoting a more permissive legislation, we find organizations such as the Table 1. Overview of articles Year For Against Undecided Total 2009 1 1 2010 6 2 4 13 2011 1 3 - 4 2012 2 7 3 12 2013 7 8 1 16 2014 3 5 3 11 2015 3 1 - 4 2016 10 6 1 17 2017 6 5 - 11 2018 4 5 - 9 2019 11 14 1 26 Total 54 56 13 124 6 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN Table 2. Overview of standpoints and actors Representatives of political Actors NGO’s/think tanks/council parties Individual actors For Association for surrogacy/surrogat.nu Liberal MP Authors Femmis (org. for single parents by choice) Moderate men Academics RFSL/RFSL YouthRFSU Moderate MP Engaged citizens SMER (ethical council) Moderate women Involuntarily Timbro (rightwing think tank) Open Moderates childless Social democratic MP Journalists The Free Moderate Student Lawyer Association Owner surrogacy agency Parents through surrogacy Against Afrikagrupperna (Africa Groups) Christian Democrats, MPs Academics Christian Council of Sweden Christian Democratic Women’s Authors Kvisk (Women in the Swedish Church) Association Engaged citizens MÄN (Feminist men’s organization) Feminist Initiative, party board Journalists Feminist no to surrogacy member Lawyers ROKS (National organization for women’s shelters Green Women and young women’s shelters) Left Party, MP Svalorna Social democrats, MP Swedish Korean Adoptees’ Network (SKAN) Social Democratic Women Swedish Medical Women’s Association Left Party Youth section (leader) Swedish Women’s Lobby Young Social Democratic United Nations Association Sweden (leader Women (Rebella, leader) Stockholm section) Unizon (org. women’s shelters) Women’s Front in Sweden WONSA (World of no sexual abuse) Undecided Moderate MP Academics Authors Journalists Social workers Association for surrogacy, as well as NGO’s working more broadly for LGBTQ-rights (RFSL) and sexual and reproductive health and rights (RFSU). Among political parties, this standpoint is most prominently represented by the Moderate Party (liberal conservative) and the Liberal Party. The discourse coalition opposing a more permissive legislation unites a range of NGOs arguing against all forms of surrogacy (commercial or not) and consists of a broad range of women’s organiza- tions, but also human rights groups, Christian organizations, and interest groups for adoptees. The parties most represented on this side of the debate are the Social Democrats, the Left Party, and the Christian Democrats. Several articles are signed by a larger number of organizations and/or party representatives, here understood as discourse coalitions. The small number of undecided articles are mainly authored by individual columnists/journalists, researchers and professionals, and one is written by an MP. Whose rights? Surrogacy as an issue of rights and the formation of discourse coalitions In Sweden, surrogacy was early established as an issue of rights, and the central topic of debate has concerned whether surrogacy strengthens or, on the contrary, weakens rights for the involved and affected parties. Most prominent has the issue of surrogacy and CRITICAL POLICY STUDIES 7 women’s rights been. The second most prominent issue concerns surrogacy as a means for strengthening the reproductive rights of involuntarily childless people, regardless of sexual orientation or civil status. The rights of children and the best interest of the child is the third most debated issue, overlapping to some extent with discussions of the rights of existing families with surrogacy-conceived children. In our close readings of the material, we have identified several recurring storylines that are used in the articulation and contestation of surrogacy as a rights-issue: surrogacy as human trade and exploitation of women, the pro-choice storyline, ‘it’s not a right to have a child, but . . . ’, the right to form a family and the right of all families, and the right to parents. As we shall see, these storylines are often strongly affectively laden, adding to the affective force of the argu- ment, and play a crucial role in the construction of discourse coalitions. Surrogacy as human trade and exploitation of women: uniting feminists and conservatives The storyline of surrogacy as human trade has been prevalent since the early days of media coverage on the topic and has had a major impact over debate for over a decade. In the early 2010s, India was the primary destination for transnational surrogacy, and the phenomenon gradually made its way into public awareness through journalistic accounts of the Indian industry. These accounts came to shape widely spread associations between surrogacy and exploitation. Later, when India had closed its borders for transnational surrogacy, countries such as Georgia and Ukraine came to represent the same problems of exploitation and inequality and the overall storyline remained the same. In this storyline, surrogacy is articulated with tropes such as ‘poverty’, ‘vulnerable women’, and the buying and selling of uteruses. Or like Social Democrat Carina Hägg put it in an early opinion piece: ‘To me, it is just another form of human trade’ (SvD, 31 May 2010). A central actor in establishing this storyline in the Swedish debates was journalist and activist Kajsa Ekis Ekman (2010), whose book Being or Being Bought (Varan och varat) was published in 2010. The book was widely debated and reviewed, and came to set the tone for discussions on surrogacy. In the book as well as many of her subsequent articles on the topic, Ekman articulates the storyline of surrogacy as exploitation and human trade with a Marxist-inspired analysis of alienation, and the comparison between surrogacy and prostitution is a main theme in her book. This positions her within an international strand of thought in which the two are compared (e.g. Sera 1997) – and one of which many surrogates are aware and which, indeed, carries a stigma that they often feel the need to defend themselves against (e.g. Pande 2010). In the Swedish context, where sex work is highly stigmatized and the buying of sexual services are banned, this storyline is easily integrated into more overarching discourses of women as vulnerable to exploitation. Ekman and some of her followers articulated the concept of alienation with the idea of prenatal maternal attachment, like in Aase Berg’s review in Aftonbladet, in which surrogacy is likened with an ‘extreme human experiment in human psychology’ which is not backed up by any ‘stable research about pregnant women’s interaction with their fetuses’. With an implicit intertextual reference to George Orwell’s 1984, she argues that the most important contribution of Ekman’s book is that it decodes ‘a scary newspeak’, ‘wherein one with the help of a displacement of concepts and abstractions transform oppression to freedom and life to a commodity, in a development of alienation that not even Marxism has been able to 8 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN predict’ (Aftonbladet, 16 September 2010). Though associations to slavery are sometimes made in the debate, the main issue far more often concerns surrogacy as an illegitimate form of paid labor – illegitimate because, like sex, pregnancy, it is considered too intimate and special to be exploited for money. Often this storyline is interwoven with the statement that women who become surrogates are particularly vulnerable, often due to poverty. This argument serves not just to promote a ban on transnational surrogacy, but also a total ban on surrogacy as a whole – even when poverty would not be an issue. In an article by two representatives of the Swedish women’s lobby, the argument swiftly moves from criticizing surrogacy as exploitation of the poor to the conclusion that all forms of surrogacy globally ought to be banned as a way to protect women’s rights as human rights ‘Each and everyone have a duty to secure the right of others through their own actions. This is human rights. To the women’s movement, they are indivisible [. . .]’ (Aftonbladet, 21 June 2012). The storyline of surrogacy as exploitation and human trade is also commonly utilized by Christian opponents. Despite their otherwise different views on women’s rights, as well as their sometimes explicitly anti-feminist and anti-Marxist standpoints, their shared storyline of surrogacy as inherently exploitative enables opponents from both these ideological camps to act in agreement when it comes to surrogacy. As late as 2019, the Christian Council of Sweden argued against policy changes to make the process of establishing legal parenthood for surrogacy-conceived children born abroad smoother, arguing that such a change ‘does not contribute to stop the exploitation of these women’ (SvD, 13 June 2019). There are also several examples of opinion pieces which are cosigned by a long list of organizations arguing against surrogacy, including both feminist actors (NGO’s, MPs, activists), Christian organizations, and sometimes interest organizations for adoptees (who have become increasingly vocal on the issue in recent years) – demonstrating precisely the power of this storyline to unite these otherwise radically divergent political actors in a discourse coalition. In relation to this, it shall be noted that both feminist and conservative actors – through the shared storyline of surrogacy as human trade and exploitation of women – articulate ‘women’s rights’ by positioning women as particularly vulnerable subjects, in need of particular rights based on their specific position as women (see e.g. Brown 2000, 232). Furthermore, it shall be noted that neither of these opponents are positive to permitting altruistic surrogacy in Sweden either, thus making all forms surrogacy equal to exploitation by combining it with arguments about womanhood, pregnancy and maternal attachment. Here, we argue that the storyline of ‘surrogacy as exploitation and human trade’ plays a central role in contributing with affective force to the argument. Associations to poverty and vulnerability of surrogates effectively creates an affective ‘spill-over effect’ in articulating surrogacy as ‘intrinsically wrong’ and dehumanizing of women, whose rights are best protected by a total ban. Surrogacy as a feminist issue: the pro-choice storyline The second storyline, which we have named ‘the pro-choice storyline’ rather draws on a liberal and universalist discourse of bodily autonomy as a matter of ‘free choice’. Although both opponents and proponents would all argue that they promote women’s bodily autonomy, the proponents do so by appealing to the strong public support for free and CRITICAL POLICY STUDIES 9 safe abortion and strong official norm of gender equality. From this point of view, then, women shall not be understood as particularly vulnerable, but capable of making decisions about whether or not they wish to be pregnant, also with someone else’s child. Not permitting surrogacy, then, is articulated as something which prevents women from exercising their reproductive rights, and therefore actually threatens their bodily integrity. Relatedly, the main line of conflict between opponents and proponents is being drawn around arguments around whether surrogacy is compatible with gender equality or not. Although many feminist- and women’s organizations, argue that it is not, some proponents argue that a ‘true pro-choice policy’ would allow women to make their own decision not just when it comes to terminating a pregnancy, but also to making their own decisions to be a surrogate. In a 2011 article signed by the chair of The Swedish Federation for Lesbian, Gay and Transgender Rights (RFSL): ‘Every human being shall have the right to use their body as he or she wishes’ (28 February 2011, Aftonbladet). This argument has also been used more recently by other proponents, both representatives of the Association for Surrogacy and representatives for the Moderate Party. In 2018, eight representatives of the party’s woman’s section and Anna Kulldendorff representing the association argue, for instance that since uterus donations are allowed so should surrogacy: ‘In those cases, women are believed to be fully capable of making decisions concerning their own bodies. [. . .] We stand up for women’s equality and right to make decisions about their own bodies.’ (Aftonbladet, 2 January 2018). Representatives for the Association for surrogacy also use the pro-choice storyline, here likening the current legislation and its consequences with abortion bans, and an intertextual reference to the 1960s, when the restricted abortion law drove many women to travel to Poland for the procedure (Lennerhed 2008). The issue of surrogacy has strong similarities with the issue of abortion. [. . .] Just like in countries that ban abortion, [a ban on surrogacy] will result in [negative consequences for] those with less resources. (Svenska Dagbladet, 21 November 2018) Although most texts are concerned with the prospect of permitting non-paid/altruis- tic surrogacy in Sweden, a few writers associate ‘women’s right to choose’ with surrogates’ right to get paid for their reproductive labor. This otherwise rare argument has, for instance, been raised by Andreas Bengtsson (medical doctor and himself father through surrogacy), who argued in favor of transnational com- mercial surrogacy, but also that surrogacy is an issue of labor rights and the right to unionize (Aftonbladet, 17 June 2012). Similarly, in his criticism of feminist mobilization against surrogacy in relation to the congress Nordiskt Forum (Nordic Forum) in the city of Malmö, gathering a number of feminist organizations, philosopher and author of the book Det förbjudna mödraskapet (Forbidden Motherhood) Kutte Jönsson 2004 accuses them of neglecting feminist argu- ments for surrogacy. He argues that surrogacy is no more exploitative than any other form of work, and that acknowledging it as a profession would enable surrogates to engage in unions. These feminist organizations, he argues, are actually challenging some of ‘feminisms most important historical victories and values’, such as ‘the right to control [one’s own] reproduction and the right to paid labor’, both of which are political demands resting on the overarching principle of bodily self-determination 10 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN (Aftonbladet, 14 June 2014). In relation to a political pro-surrogacy campaign arranged by the Moderates in relation to Stockholm Pride in 2019 that gained widespread media attention, two representatives of the Free Moderate Student Association argued along the same line – against their mother party – that the Moderates’ campaign for altruistic surrogacy is illogical, and that permitting paid surrogacy is the only way to ‘stand up for women’s absolute right to their bodies’ (SvD, 2 August 2019). The rights of involuntarily childless people: “It is not a right to have a child (but . . .) In the negotiations of the meaning of (reproductive) rights of involuntarily childless people, there is a clear tendency to include everyone who cannot conceive through intercourse, not only those with a medical diagnose of infertility but also, for example gay male couples and sometimes also single men. Much of the debate coheres around the extent to which ‘child-longing’ (barnlängtan – the Swedish word to describe a strong, nearly insurmountable, desire to have children) ought be accommodated by way of legislation, and by way of which reproductive technologies. This idea is frequently articulated with the storyline of ‘it is not a right to have a child’, which is used to support arguments both for and against surrogacy. Among proponents, the expression is often followed by a rhetorical ‘but . . . ’, either responding to a previous article or signaling an anticipation of this as a counterargument. Four Moderate MPs, for instance, argued already in 2011 that the legislation was outdated and impacted involuntarily childless people negatively: ‘The legislation on involuntary childlessness is a mess of contradictions where outdated regulations and moralism clashes with technological possibilities and people’s desires’. Therefore, they argue, involuntarily childless people are ‘forced’ into ‘legal outskirts’, by going abroad for surrogacy where they do not really ‘know under which conditions the [surrogate] mothers live’. The question [of surrogacy] ought to be about how we can accommodate those who so strongly long for children, without having the aberrations that we are afraid of, for example the exploitation of poor women. There are juridical and ethical problems that need to be solved, like for example what happens if one of the parties changes their mind. (Svenska Dagbladet, 16 October 2011). Even though also notions of ‘modern family formations’ appear in the article, the main argument for investigating a legal framework for surrogacy is the idea of ‘child-longing’ as universal, rather than restricted to heterosexual couples (see also Gunnarsson Payne 2018). The articulation of individual liberty, responsibility and child-longing as a strong, if not unstoppable, psychological force leads to the conclusion that surrogacy shall be permitted. This understanding of child-longing as an insurmountable and unstoppable force is commonly used by proponents of surrogacy – often in combination with descriptions of how common it is that many years of failed attempts to become parents have preceded such a decision – to argue that no legislation will be able to stop people from having children this way. CRITICAL POLICY STUDIES 11 Surrogacy opponents such as for example the Swedish Women’s Lobby thinks that having children is not a right. No, it is not a right. [. . .] But we all do what we can for our wellbeing and to survive. We do what we can because the technology exists. (Svenska Dagbladet, 1 December 2014) Similarly, the two MPs Erika Ullberg (Social Democrat) and Anna Starbrink (Liberal Party) argue that although it might not be a right to become a parent, ‘neither should the state make it harder for people to realize their dream of [having] a child’. To this end, they propose a new legislation, as well as a cross-party agreement on how to improve the conditions for existing parents through surrogacy and their children (Aftonbladet, 28 July 2016). Another article authored by eight representatives for the Moderate Party and one mother through surrogacy argues along the same lines that regardless of legislation, ‘people who wish to have children through surrogacy will continue to turn to clinics abroad’ (Aftonbladet, 2 January 2018). This interpretation of reproductive rights articulates on the one hand a liberal under- standing of the state (which according to this view, ought not to interfere with the reproductive decisions of its citizens), and on the other hand the notion of child- longing as an unstoppable driving force. When used this way, this storyline is granted its affective force by references to the suffering that unfulfilled child-longing causes. Child-longing also appears in articles by two representatives for the surrogacy industry (one agency owner and one lawyer specialized in surrogacy) defending their companies from criticism, arguing that they follow ethical guidelines for transnational surrogacy: ‘This strong yearning [for a child] shall obviously not lead to surrogacy being carried through at any price.’ (SvD, 28 October 2017). Some opponents, however, articulate child-longing in terms of ‘wants’ rather than ‘needs’. Liberal editorial writer for DN, Hanne Kjöller argues that the wishes and happiness of the involuntarily childless need to be weighed against the medical and psychological risk of the surrogates (DN, 24 February 2016). Other opponents argue with a more compassionate tone that although unfulfilled child-longing may indeed cause deep suffering, it can never trump other, more important, values. In a heartfelt response to a pro-surrogacy editorial in DN, Catholic columnist John Sjögren, for example, argues in SvD that despite his own and his wife’s own child-longing and experience of involun- tary childlessness he does not consider having children as ‘a right’. For him, the normal- ization of surrogacy is linked to ‘a kind of voluntarism and a [way of thinking about rights] that has run amok: I want something, therefore I have a right to it’. Alluding to child-longing as a reason for permitting surrogacy, he argues, is based on a confusion between wishes and rights, and surrogacy is wrong because it entails reducing another human as a means to an end (Svenska Dagbladet, 5 August 2019). The right to form a family and the rights of all families In the highly secularized liberal democracy of Sweden, also the most religiously con- servative authors draw on a discourse of rights in their argumentation against surrogacy. Arguments openly embracing a conservative heteronormative family ideal were more or less non-existent in the debate. Instead, ‘rights of the family’ frequently appeared in terms of proponents of surrogacy arguing for the right for everyone to form a family, and equal rights for all families (including those formed by way of surrogacy). 12 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN In an opinion piece strategically published on Mother’s Day in 2010, for example, Urban Johansson and Sten Holmström from the ‘masculinist’ men’s rights network ‘Moderate Men’ argue that surrogacy is not only an issue of LGBTQ-rights but also one of gender equality. They are speaking on behalf of gay men as well as single women (that at the time could not access assisted reproduction in Sweden) and single men, and framing it in relation to what they see as a systematic discrimination of fathers in Swedish society. In the name of equality, they argue, men (single and in same-sex relationships) ought to have the same right to form families as lesbian and heterosexual women. In addition, they point out that increased reproductive rights for lesbian couples have led to difficulties for gay men to arrange reproductive constellations with women. The systematic discrimination that Swedish fathers seem to be subjected to in custody battles, when the authorities constantly side with the mother, has also made Swedish gay men regard surrogacy as a safer and legally secure way to parenthood than forming a family with a female friend or a lesbian couple. (SvD, 30 May 2010) In another text from 2010 a representative of RFSL’s youth section similarly argue in favor of the rights of all families, and articulate the right to form a family through surrogacy with such right claims: ‘The central ideas in a modern family politics is that human lives look different and that politics see and acknowledge this’ (Aftonbladet, 10 April 2010). Similarly, in a polemic against the Christian Democrats and their rhetoric of family friendly politics, the two moderate MPs Maria Abrahamsson (a well-known voice on the political right in debates on gender and feminism) and Olov Lavesson argue that permitting surrogacy would be a logical continuation of previous legislative reforms to make marriage legislation and access to assisted reproduction more inclusive. For them, obstructing the possibilities to conceive through surrogacy is incompatible with ‘good conditions for all families’, as well as women’s freedom ‘to help childless couples regardless of gender’ to form a family. (Importantly, however, they think that any costs for a surrogacy arrangement should be paid by the intended parents themselves, rather than be state funded.) (Aftonbladet 31 October 2010). Contested children’s rights: the right to one’s parents Considering that surrogacy among Swedish residents is a rather novel phenomenon, it does not come as a surprise that the participants in the debate do not include surrogacy- conceived persons themselves; most of them would simply be too young. Having said that, both opponents and proponents claim, in different ways, to represent the rights of surrogacy-conceived children. A rare argument represents a rather similar standpoint to Ekman’s and others (mentioned above) concerning the intimacy between pregnant person and fetus, emphasizing so-called pre-natal attachment (see e.g. Teman 2008). In an article from 2013, for example, poet and cultural critic Helena Granström argue that the process of pregnancy and the relationship that is formed between mother (by which she means the surrogate) and fetus shall not be ignored (DN, 8 March 2013). Another rare voice is author and pensioner Margareta Burman, who identifies as surrogacy-conceived and has written two autobiographical books about how her birthmother, a live-in maid in the 1930s, fell pregnant with her through an arrangement with her employer – a tragic story in which her mother ultimately took her life. Emphasizing CRITICAL POLICY STUDIES 13 the importance of the prenatal bond, she argues against Liberal MP Barbro Westerholm’s pro-surrogacy stance, arguing that ‘if she does not understand what it means for a woman to hand over the child she has carried under her heart and shared her bloodstream with for nine months’ she may not be particularly wise, continuing: ‘When my mother realized what she had agreed to, she took her life.’ (DN, 2 July 2019). In this interpretation of surrogacy, the pregnant person's and the child’s rights are intrinsically intertwined. The mother is defined as she who carries the child, and thus the child has right to its ‘real’ mother. Children's ‘right to know their origins’ is raised by some, who argue that surrogacy- conceived children ought to have the same right as adoptees and donor-conceived have in Swedish law. Two of the undecided texts, both written by social workers with experience of adoption processes and family court issues, express hesitation about the practice. One of them argues for the importance of support for parents of surrogacy- conceived children in dealing with potential questions their child might have about their conception (SvD, 13 December 2014). The other expresses concern about how children might feel about the (assumed) plight of the surrogate, as well as the fact that the father 'has paid a poor woman to give birth to his child'. (SvD, 30 October 2010) When the opponents appeal to children’s rights to justify their standpoint, the storyline of ‘surrogacy as human trade’ reoccurs in the argument that surrogacy is a kind of child trafficking, and that surrogacy clinics are essentially ‘baby factories’. Some of them speak of surrogacy as ‘production’ of children – sometimes associating it with eugenics. Headlines such as ‘Stop all trade with baby factories’, and ‘Put a stop to the trade with the unborn children’ are common in the material (e.g. Expressen, 28 February 2011). As with the storyline of surrogacy as human trade in women, it is also strongly overrepresented in articles by women’s NGOs and political parties (especially female MPs and women’s sections) on the left side of the political spectrum, but also used in articles signed by the Christian Council of Sweden and the Christian Democrats (and occasionally others, e.g. Green MPs). It has also emerged in commentary of international news about surrogacy scandals. The storyline of surrogacy as human trade (‘baby selling’, ‘child trafficking’) is often vehemently rejected by surrogacy proponents for being both insulting and untrue. Once it is used by Liberal MP Barbro Westerholm, who argues that altruistic surrogacy ought to be permitted in Sweden, precisely to avoid commercialization and its aberrations (Aftonbladet 7 March 2013). If the emphasis of the opponents, including those demanding a stop to ‘baby selling’, is mainly placed on preventing the birth of more surrogacy-conceived children, the propo- nents rather focus on the rights of surrogacy-conceived children who are already born, and the rights which for them are tied to the parental status of the (intended) parents. A particularly central issue concerns problems related to obtaining citizenship and lengthy juridical and administrative processes in determining legal guardianship for surrogacy- conceived children born under the existing legislation, and the opponents are often accused by proponents for promoting moralism at the expense of children. In 2015, Andreas Bengtsson criticizes the Swedish Women’s Lobby for being in alliance with the Conservative Christian organization CBC in demanding a halt to ‘a project in Haag that was started to find international solutions for how children born through surrogacy shall be guaranteed legal guardians and citizenship so that they are not harmed’ and rhetorically asks how such an action promotes the human rights of newborns (Expressen, 19 May 2015). 14 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN As the Parliament in August 2018 voted yes to make the UN convention for the rights of the child part of Swedish law, both proponents and opponents began referring this decision to support their respective case. Proponents emphasized its paragraphs on citizenship and guardianship, while opponents focused on the right for children to know their origins, their right not to be abducted, and their right not to be bought and sold. Under the headline ‘Protect children born by a surrogate mother’ a moderate MP and the family lawyer Emma Dahlén argue, for instance, that Swedish policy makers ought to rectify the ‘legal vacuum’ in which surrogacy-conceived children born in Georgia and Ukraine live for the first weeks of their lives, who are deprived of their rights as Swedish citizens: ‘All of these children have a genetic father with Swedish citizenship, thereby the right for Swedish citizenship is an un-debatable fact’ (SvD, 21 August 2019). For the most vehement opponents, instead, the forthcoming law is used as an argu- ment for criminalizing surrogacy abroad. In an op-ed, a long list of NGO’s and activist networks (feminist, human rights organizations and associations for adoptee rights) argue that ‘Sweden ought to follow France, Italy and Germany that all have introduced a total ban of [this] trade’ and demand Swedish legislators to ‘cover the [legal] loopholes that today are used by international surrogacy companies’. They write that surrogacy is opposed to ‘the UN convention of the Rights of the Child about the child’s right to know their origins, as well as the right not to be abducted, sold or traded with, regardless of aim and form’ (SvD, 9 October 2019). Rights discourse ‘in action’ in the surrogacy debate: concluding reflections The fact that the Swedish surrogacy policy debate since its inception in 2010 has mainly been centered around different articulations of (more or less abstract or concrete) rights may not be very surprising. Indeed, as Paul Rabinow has stated, despite the fact that ‘there are governments who contest and combat “rights talk” (and the groups who articulate it) on a variety of grounds, including national sovereignty and traditional culture’ there is likely no other secular discourse which carries the same potential for countering them (2002, 144). In that sense, the Swedish surrogacy policy debate is very much ‘a child of its times’, not just with regards to its very object of debate, but also insofar as that it deals with more overarching issues central to contemporary liberal democracies – and especially so a set of (ultimately unresolvable) tensions between different articulations of individual autonomy and ‘common good’, particularism and universalism, and the inbuilt gap between abstract (human) rights and their legal implementation into citizen rights – which are all intimately intertwined with rights discourse and -practice (see also Rancière 2004). Taking the cue from Rabinow, we argue that a central task for humanities and social science scholars is to explore how this set of discursive practices are taking shape in practice (Rabinow 2002, 143). While many thinkers have (rightly) criticized the ‘vacuousness’ of human rights discourse, this precise vacuousness is actually a prerequisite for their centrality in the Swedish surrogacy policy debate. Indeed, it is the very ‘emptiness’ of rights that make them so open for hegemonic contestation and polarization between the two discourse coalitions that have been identified in the debate (see also Chambers 2003; Rancière 2004). CRITICAL POLICY STUDIES 15 To summarize our findings, the main dividing line between the two discourse coalitions in the Swedish debate – on the one hand, the liberal coalition and the coalition between (radical) feminists and conservatives on the other – concerns the role of the state in interfering (or not) in the intimate lives of citizens in order to protect a set of different rights. For the more liberal- minded discourse coalition arguing for a more permissive legislation, the different rights mentioned are described as best protected by minimal state intervention when it comes to citizens’ reproductive decisions as well as equal and universal implementation of citizen rights and welfare provisions regardless of gender, sexuality or civil status. The opposing discourse coalition is united by a more interventionist understanding of the state’s role with regards to the issue, as well as a more particularistic understanding of women’s rights, which are understood as best protected by preventing surrogacy as a practice, both in Sweden and abroad. While the pro-surrogacy coalition gains its affective force from a universalist articu- lation of ‘child-longing’ (an unstoppable and painful desire to have a child of one’s own), the anti-surrogacy coalition draws its affective force from the storyline of surrogacy as exploita- tion and human trade in women and children. For the former, the main subject articulated as those deprived of their rights in current legislation are involuntarily childless people; for the latter, those deprived of their rights by current policy are the women acting as surrogates in transnational surrogacy arrangements (while they argue that the current policy protects Swedish women from reproductive exploitation). Importantly, however, in the Swedish context – a country since long priding itself for its extensive commitment to gender equality – both sides seek to gain legitimacy though positioning themselves as protectors of women’s rights, but without agreeing on of what these rights shall consist. This unresolvable tension between them can be located in what Wendy Brown (2000) has defined as a paradox in rights discourse in feminism: that on the one hand, ‘the more highly specified rights are as rights for women, the more likely they are to build a fence insofar as they are more likely to encode a definition of women premised upon our subordination in the transhistorical discourse of jurisprudence’, but on the other, ‘the more gender-neutral or gender-blind a particular right (or any law or public policy) is, the more likely it is to enhance the privilege of men and eclipse the needs of the women as subordinates’ (Brown 2000, 231). Consequently, we argue that the stance whereby surro- gacy is described as intrinsically exploitative of women and children (whose rights are best protected by banning it) risks essentializing women’s role in reproduction and ignoring a range of existing reproductive desires, experiences and arrangements, while the stance that universal reproductive rights for all are best protected by allowing it instead tend to downplay the specific needs and experiences of the pregnant person (which are tied to their specific physiology and social gendered position). To conclude, during the studied decade, the debate has remained polarized with little change in argumentation, use of storylines or emergence of new standpoints – and, in line with Koch-Baumgarten and Woltmer’s observations, new actors have joined and taken sides rather than adding new arguments and perspectives on the phenomenon (2010, 5). Undecided articles are few and far between, as are any concrete policy proposals of more concretely how surrogacy could be integrated in Swedish legislation or, conversely, the potential social and legal consequences of a total ban. If, as Koch-Baumgarten and Woltmer (2010) have argued, uncertain policy situations are making policy makers more receptive to media representations, it may be said that the current ‘split policy’ is a pragmatic result of the decade-long polarization on the issue, in which surrogacy is neither really permitted nor 16 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN really banned. Consequently, despite evidence of rising numbers there are still no official statistics of surrogacy, and despite efforts to smoothen the process to achieve the legal status of surrogacy-conceived children (MFoF 2021), these children exist in legal limbo for the first period of their lives. While this pragmatic solution helps to ensure that surrogacy- conceived children are granted some important citizen- and human rights (e.g. the right to parents) more swiftly than before, it does very little to ensure any of the rights that either opponents or proponents argue for. Notes 1. Mika Handelsman-Nielsen conducted searches and organized the material for 2009-2018 and identified actors and overarching thematic tendencies in the material. Main author Jenny Gunnarsson Payne conducted the overarching analysis, made complementary searches (especially for 2019) and wrote the final version of the article. 2. The report by Napoleon AB had been issued by the surrogacy agency Tammuz Nordic Surrogacy. 3. Even though this is not the focus of this article, it is important to note that media representations and debates of the phenomenon also affects those involved in or affected by surrogacy, for instance in terms of expectations on the process (Teman 2019), or stigma and charges of exploitation (Arvidsson et al. 2015). 4. Among those arguing for a more permissive legislation, there is a broader variety in opinion, especially with regards to commercial surrogacy (which some proponents argue is wrong). 5. To this end, the project within which this study has been conducted promotes, as an alternative to this dead end, a relational approach to surrogacy and reproductive justice. This has been discussed to some extent in Gunnarsson Payne, Mezinska, and Korolczuk (2020), and is currently being developed in further publications. Disclosure statement No potential conflict of interest was reported by the author(s). Funding This work was supported by the Östersjöstiftelsen [3152–3 1.1.2017]. 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The surrogacy question, unresolved: surrogacy policy debate as a hegemonic struggle over rights

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CRITICAL POLICY STUDIES https://doi.org/10.1080/19460171.2022.2105736 The surrogacy question, unresolved: surrogacy policy debate as a hegemonic struggle over rights a b Jenny Gunnarsson Payne and Mika Handelsman-Nielsen a b School of Historical and Contemporary Studies, Södertörn University, Huddinge, Sweden; Independent research assistant, Stockholm, Sweden ABSTRACT Keywords surrogacy; assisted Sweden is often described as a ‘moderate’ country when it comes to reproductive technologies; legislation and policy on assisted reproductive technologies, being Sweden; policy debate; relatively permissive with regards to their use, but only permitting hegemonic processes them within a strictly regulated framework. The ‘surrogacy ques- tion’, however, remains a polarized issue in media debates and has become a key topic of public negotiation and contestation around the meaning of a range of rights. This article investigates how surrogacy became a topic for policy debate in Swedish opinion journalism between 2009 and 2019. Drawing on discourse theory, the article investigates which, and ‘whose’, rights are mobilized in the debate, as well as how these rights are differently articulated and ‘filled with meaning’. It argues that polarized discourse coali- tions are formed across the political spectrum, and that the absence of explicit legislation on surrogacy has led to a pragmatic ‘split policy’ which keeps both opponents and proponents unsatisfied, keeping the debate alive. Introduction Sweden has often been described as a ‘moderate’ country when it comes to legislation and policy on assisted reproduction, being relatively permissive with regards to their use, but only permitting them within a strictly regulated framework. Sperm donation has been practiced since at least the 1950s, and the first child born from in vitro fertilization (IVF) was born in 1982. The first legislations on assisted reproduction were established soon thereafter: sperm-donation was regulated in 1984, IVF in 1988, and IVF in combination with donated sperm in 1995, and egg-donation in 2003. While initially only available for heterosexual couples, legislation has become more inclusive over time, insofar as that it now also includes access to assisted reproduction for lesbian couples (2005) and single women (2013). Since 2013, transgender patients under- going gender affirmation therapies are entitled to fertility preservation (cryopreservation of gametes). The fact that embryo-donation is permitted since 2018 has also increased the possibilities for the involuntarily childless. Surrogacy – which is still not permitted within Swedish healthcare – remains, however, an unresolved question. Yet surrogacy CONTACT Jenny Gunnarsson Payne jenny.gunnarsson.payne@sh.se Ethnology, School of Historical and Contemporary Studies, Södertörn University Alfred Nobels allé 7, 141 89 Huddinge, Sweden © 2022 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/ licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. 2 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN arrangements are on the rise and the phenomenon has become increasingly visible and normalized in the public sphere. As an increasing number of Swedish residents travel abroad for the purpose, Swedish authorities are solving each surrogacy arrangement by using parts of existing legislation on a case-to-case basis, practicing what best can be called a pragmatic ‘split policy’ according to which surrogacy is not quite forbidden but neither quite permitted (at least within the nation’s borders). The Swedish surrogacy debate therefore offers an interesting case for investigating the role that opinion journalism plays for different interest groups and political actors who are competing in seeking to influence and settle an uncertain policy situation (see e.g. Koch-Baumgarten and Woltmer 2010, 5). The Swedish case offers an opportunity to investigate debates on surrogacy in a highly secularized context with strong (but not uncontested) norms of gender equality and anti-discrimination, in which religious and/ or biologist arguments have generally loosened their grip on policy and legislation on assisted reproduction. Against this background, the article aims to empirically investigate this policy debate in Swedish opinion journalism between the years of 2009 and 2019. Motivated by the overwhelming presence of rights discourse in the debate, we investigate which, and ‘whose’, rights are mobilized, as well as how these rights are differently articulated and filled with meaning by the various actors in the debate, depending on their political ideologies and worldviews. The article also explores how proponents and opponents of surrogacy form so-called discourse coalitions across the political spectrum, demonstrat- ing how the polarization between these coalitions has been sedimented for over a decade, with little sign of change. In the meantime, the absence of legislation has led to pragmatic solutions for dealing with existing transnational surrogacy arrangements – solutions which keep both opponents and proponents unsatisfied, and keep the debate alive. Surrogacy as an unresolved policy issue – background and context Surrogacy was first mentioned in a governmental report in the 1980s, but only to conclude that it was not relevant for Swedish legislation, and that existing adoption legislation would make paid surrogacy illegal anyway (SOU 1985, 5, 33–34). It was not until 2008 that surrogacy emerged more clearly as a contested policy issue, first in the context of the congress decision made by the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights (RFSL) to begin advocating for a permissive legislation. In 2012, the Swedish parliament commissioned an Official Governmental Report which, when published 4 years later, recommended against permitting any form of surrogacy- related treatments in Swedish healthcare. As commercial surrogacy had never really been on the proverbial policy-table, the main risks raised by the Governmental Investigator concerned commercialization as well as potential risks of intra-familial pressure on women to act as surrogates (SOU 2016). Thereby, they argued against the conclusions previously drawn by the Swedish National Council of Medical Ethics (Smer) in 2013, which had recommended permitting altruistic surrogacy between close kin, friends and family (Smer 2013; Gunnarsson Payne 2018). In February 2018, the Swedish Government declared their decision to follow the Governmental Investigator’s recommendation not to change the legislation in favor of CRITICAL POLICY STUDIES 3 surrogacy, and the law since remains the same. In practice, this means that while surrogacy-related treatments may not take place within Swedish healthcare, the practice is not explicitly banned, making it legally possible for Swedish residents to travel abroad for the purpose. While there are no official statistics of how many Swedish children are born through surrogacy, unofficial statistics shows that numbers are increasing. Statistics Sweden (SCB) has estimated that 220 surrogacy-conceived children were registered in Sweden between 2014 and 2018, and the legal firm Napoleon AB has shown that at least 215 children were born this way in 2019 (Canolis 2020). Transnational surrogacy has been made easier and smoother – for those who can afford it. The newly established surrogacy agency Tammuz Nordic Surrogacy set up an office in the capital city of Stockholm in 2016. There is also a consultation and mediation service, Surrogacy Sweden, offering personal and legal support and connecting clients with clinics abroad. In practice, this means that Sweden applies a pragmatic ‘split policy’, whereby – despite it not being permitted within the nation’s borders – several of its state authorities such as embassies, courts, the Swedish migration Agency, and the Swedish Social Insurance Agency are solving each surrogacy case individually, leaning on other parts of the legislation to ensure parental status, citizenship rights for the child, family benefits and parental leave. As surrogacy is increasing, authorities have developed guidelines for best practice concerning how to solve issues of citizenship, parental status, and social insurance (MFoF 2021). The surrogacy policy debate as a hegemonic struggle over the meaning of rights The extent to which media debates affect policy is not settled in research, and appears to be strongly context dependent. Yet, as Sigrid Koch-Baumgarten and Katrin Woltmer have argued, uncertainty regarding policy is expected to make policy makers more receptive to media representations, especially when they are accompanied by ‘sensational images that have the potential to mobilize public opinion up to a point of moral panic’ (which has often been the case with surrogacy as well as other forms of assisted procrea- tion). A policy issue is also more likely to gain media attention in case of clear splits within or between political camps, and once an issue has gained media attention, ‘the dynamic and direction can change dramatically’. Moreover, once a policy issue has become an object of intense debates, it often becomes further polarized, and new actors may join it and take sides (2010, 5). In a study on surrogacy policy debates in Norway – a country which resembles Sweden both in terms of surrogacy legislation and broader cultural issues of welfare, gender equality and LGBTQ-rights – it is argued that issues of biotechnology have been particularly prone to becoming objects of media debate, and that these debates have played a significant role for interest groups to influence policy decisions (Levold, Svingen, and Aune 2019, 5; see also Andersen 2013). Another study on Norweigan surrogacy debates shows great simila- rities to the Swedish debate, especially with regards the issue of the role and responsibility of the state (Nebeling Petersen, Kroløkke, and Myong 2017). As Gunnarsson Payne (2018) has argued, it is also important to consider how such debates co-exist with other forms of media representations. In the Swedish context, it has not been unusual that the 4 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN broadcasting of a documentary has led to a reactivation of the debate in opinion journalism. Additionally, a radio or television reportage is often followed by a debate within the same programme. Such genre combinations adds ‘affective force’ to policy debates by offering personalized stories of surrogates and intended parents with which media consumers can identify (see also Markens 2012; Riggs and Clemence 2013; Gondouin 2018). Opinion journalism is thus an important genre through which the hegemonic struggle of what surrogacy ‘is’ and how it ought to be dealt with by the state can be studied. Following Ernesto Laclau and Chantal Mouffe’s understanding of hegemony, we define it as the construction of a ‘collective will’ which is necessarily constitutive in the formation of the political subjects it simultaneously claims to represent (Laclau and Mouffe 1985). Working within the same tradition, David Howarth has described hegemony as on the one hand ‘a kind of political practice that captures the making and breaking of political projects and discourse coalitions’ and on the other as ‘a form of rule and governance that speaks to the maintenance of policies, practices and regimes’ in a way that that manages to affectively ‘grip’ subjects. Thus policy change tends to result from political struggle between rival political projects and public support is achieved and perpetuated by the construction of different ‘fantasies and ideologies that secure the consent of subjects, as well as complex techniques and tactics’ (Howarth 2010, 310). In analyzing policy debates as hegemonic struggles, it is therefore crucial to consider how different alternatives manage to mobilize positive or negative affect among the public, as well as policy makers. As Mouffe has expressed it, any attempt to theorize politics needs to take political passions and their central role for the construction of collective identities into account, as political discourse ‘has to offer not only policies but also identities which can help people make sense of what they are experiencing as well as giving them hope for the future’ (2005, 24–25). Moreover, like Samuel Chambers has pointed out, the majority of political arguments in contemporary liberal democracies ‘find themselves enmeshed at some point within one of the many overlapping and discontinuous discursive practices within which rights play a central role’ (2003, 149, emphasis added). The appeal to different rights – often, but not always articulated as human rights – serves to gain legitimacy for a specific political claim, thereby universalizing it, in the quest for achieving its hegemonic status (see also Chambers 2003, 2004). To operationalize these insights empirically, we have found Maarten Hajer’s (1993, 2006) concepts of storylines and discourse coalitions particularly useful for studying hege- monic processes ‘in action’. Storylines – ‘condensed statements summarizing complex narratives, used by people as “shorthand” in discussions’ (Hajer 2006, 69) – are central for policy debates; by drawing on culturally recognizable tropes, they play a crucial function in the construction of ‘common sense’, and are effective in mobilizing positive or negative affects for or against a specific phenomenon. Storylines also enable the formation of discourse coalitions, that is, ‘a group of actors who share a social construct’ – in this case surrogacy – without necessarily fully agreeing on all aspects of it (Hajer 1993, 45). The fact that discourse coalitions are organized around a set of storylines provides the very condi- tion for a wider range of actors to ‘act in agreement’, also across ideological worldviews (see also Edenborg 2021). CRITICAL POLICY STUDIES 5 Material, method and selection process The analyzed material consists of opinion journalism from major national newspapers in Sweden in the years of 2009 to 2019. Initial media searches were made from 2005, but no opinion journalism on the topic was found until 2009 (though some news reports on it had been published before). The analysis is limited to the four biggest Swedish news- papers: Dagens Nyheter (DN, independent liberal), Svenska Dagbladet (SvD, independent moderate), Aftonbladet (independent social democratic) and Expressen (independent liberal). A broad search was conducted in databases (Svenska Dagstidningar and Mediearkivet/Retriever), with complementary searches on Google and the newspapers’ websites. The material was read through in its entirety to exclude doublets and articles deemed irrelevant for our analysis. The material was narrowed to include only opinion journal- ism (op-eds, editorials, letters to the editor), ending up with 124 articles. Additionally, a small number of book reviews specifically debating surrogacy were included. Focussing on opinion journalism (in this extended meaning) enabled us to identify explicit argu- ments for or against surrogacy, as well as relevant political standpoints among the signatories and commonly occurring tropes. Who’s saying what? Mapping the Swedish surrogacy debate and its actors Of the 124 texts, 54 articles argue in favor of a legislation that allows surrogacy-related treatments in Swedish healthcare, 56 articles argue against it, and 13 are either explicitly undecided and/or pointing out the complexity of the issue without ‘taking sides’ (Table 1). All newspapers have published a range of arguments both for and against legalizing domestic surrogacy, independently of their respective political leanings. From the very beginning, both sides of the debate have been characterized by a strong presence of interest organizations and NGO’s (largest number of articles), representatives of political parties (second largest number), journalists and authors as well as a smaller number of academics and engaged citizens sometimes writing in their professional role (see Table 2.). As Table 2 shows the debate is largely divided into two antagonistic camps (see e.g. Laclau 2005, 189), which we here understand as discourse coalitions. In the discourse coalition promoting a more permissive legislation, we find organizations such as the Table 1. Overview of articles Year For Against Undecided Total 2009 1 1 2010 6 2 4 13 2011 1 3 - 4 2012 2 7 3 12 2013 7 8 1 16 2014 3 5 3 11 2015 3 1 - 4 2016 10 6 1 17 2017 6 5 - 11 2018 4 5 - 9 2019 11 14 1 26 Total 54 56 13 124 6 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN Table 2. Overview of standpoints and actors Representatives of political Actors NGO’s/think tanks/council parties Individual actors For Association for surrogacy/surrogat.nu Liberal MP Authors Femmis (org. for single parents by choice) Moderate men Academics RFSL/RFSL YouthRFSU Moderate MP Engaged citizens SMER (ethical council) Moderate women Involuntarily Timbro (rightwing think tank) Open Moderates childless Social democratic MP Journalists The Free Moderate Student Lawyer Association Owner surrogacy agency Parents through surrogacy Against Afrikagrupperna (Africa Groups) Christian Democrats, MPs Academics Christian Council of Sweden Christian Democratic Women’s Authors Kvisk (Women in the Swedish Church) Association Engaged citizens MÄN (Feminist men’s organization) Feminist Initiative, party board Journalists Feminist no to surrogacy member Lawyers ROKS (National organization for women’s shelters Green Women and young women’s shelters) Left Party, MP Svalorna Social democrats, MP Swedish Korean Adoptees’ Network (SKAN) Social Democratic Women Swedish Medical Women’s Association Left Party Youth section (leader) Swedish Women’s Lobby Young Social Democratic United Nations Association Sweden (leader Women (Rebella, leader) Stockholm section) Unizon (org. women’s shelters) Women’s Front in Sweden WONSA (World of no sexual abuse) Undecided Moderate MP Academics Authors Journalists Social workers Association for surrogacy, as well as NGO’s working more broadly for LGBTQ-rights (RFSL) and sexual and reproductive health and rights (RFSU). Among political parties, this standpoint is most prominently represented by the Moderate Party (liberal conservative) and the Liberal Party. The discourse coalition opposing a more permissive legislation unites a range of NGOs arguing against all forms of surrogacy (commercial or not) and consists of a broad range of women’s organiza- tions, but also human rights groups, Christian organizations, and interest groups for adoptees. The parties most represented on this side of the debate are the Social Democrats, the Left Party, and the Christian Democrats. Several articles are signed by a larger number of organizations and/or party representatives, here understood as discourse coalitions. The small number of undecided articles are mainly authored by individual columnists/journalists, researchers and professionals, and one is written by an MP. Whose rights? Surrogacy as an issue of rights and the formation of discourse coalitions In Sweden, surrogacy was early established as an issue of rights, and the central topic of debate has concerned whether surrogacy strengthens or, on the contrary, weakens rights for the involved and affected parties. Most prominent has the issue of surrogacy and CRITICAL POLICY STUDIES 7 women’s rights been. The second most prominent issue concerns surrogacy as a means for strengthening the reproductive rights of involuntarily childless people, regardless of sexual orientation or civil status. The rights of children and the best interest of the child is the third most debated issue, overlapping to some extent with discussions of the rights of existing families with surrogacy-conceived children. In our close readings of the material, we have identified several recurring storylines that are used in the articulation and contestation of surrogacy as a rights-issue: surrogacy as human trade and exploitation of women, the pro-choice storyline, ‘it’s not a right to have a child, but . . . ’, the right to form a family and the right of all families, and the right to parents. As we shall see, these storylines are often strongly affectively laden, adding to the affective force of the argu- ment, and play a crucial role in the construction of discourse coalitions. Surrogacy as human trade and exploitation of women: uniting feminists and conservatives The storyline of surrogacy as human trade has been prevalent since the early days of media coverage on the topic and has had a major impact over debate for over a decade. In the early 2010s, India was the primary destination for transnational surrogacy, and the phenomenon gradually made its way into public awareness through journalistic accounts of the Indian industry. These accounts came to shape widely spread associations between surrogacy and exploitation. Later, when India had closed its borders for transnational surrogacy, countries such as Georgia and Ukraine came to represent the same problems of exploitation and inequality and the overall storyline remained the same. In this storyline, surrogacy is articulated with tropes such as ‘poverty’, ‘vulnerable women’, and the buying and selling of uteruses. Or like Social Democrat Carina Hägg put it in an early opinion piece: ‘To me, it is just another form of human trade’ (SvD, 31 May 2010). A central actor in establishing this storyline in the Swedish debates was journalist and activist Kajsa Ekis Ekman (2010), whose book Being or Being Bought (Varan och varat) was published in 2010. The book was widely debated and reviewed, and came to set the tone for discussions on surrogacy. In the book as well as many of her subsequent articles on the topic, Ekman articulates the storyline of surrogacy as exploitation and human trade with a Marxist-inspired analysis of alienation, and the comparison between surrogacy and prostitution is a main theme in her book. This positions her within an international strand of thought in which the two are compared (e.g. Sera 1997) – and one of which many surrogates are aware and which, indeed, carries a stigma that they often feel the need to defend themselves against (e.g. Pande 2010). In the Swedish context, where sex work is highly stigmatized and the buying of sexual services are banned, this storyline is easily integrated into more overarching discourses of women as vulnerable to exploitation. Ekman and some of her followers articulated the concept of alienation with the idea of prenatal maternal attachment, like in Aase Berg’s review in Aftonbladet, in which surrogacy is likened with an ‘extreme human experiment in human psychology’ which is not backed up by any ‘stable research about pregnant women’s interaction with their fetuses’. With an implicit intertextual reference to George Orwell’s 1984, she argues that the most important contribution of Ekman’s book is that it decodes ‘a scary newspeak’, ‘wherein one with the help of a displacement of concepts and abstractions transform oppression to freedom and life to a commodity, in a development of alienation that not even Marxism has been able to 8 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN predict’ (Aftonbladet, 16 September 2010). Though associations to slavery are sometimes made in the debate, the main issue far more often concerns surrogacy as an illegitimate form of paid labor – illegitimate because, like sex, pregnancy, it is considered too intimate and special to be exploited for money. Often this storyline is interwoven with the statement that women who become surrogates are particularly vulnerable, often due to poverty. This argument serves not just to promote a ban on transnational surrogacy, but also a total ban on surrogacy as a whole – even when poverty would not be an issue. In an article by two representatives of the Swedish women’s lobby, the argument swiftly moves from criticizing surrogacy as exploitation of the poor to the conclusion that all forms of surrogacy globally ought to be banned as a way to protect women’s rights as human rights ‘Each and everyone have a duty to secure the right of others through their own actions. This is human rights. To the women’s movement, they are indivisible [. . .]’ (Aftonbladet, 21 June 2012). The storyline of surrogacy as exploitation and human trade is also commonly utilized by Christian opponents. Despite their otherwise different views on women’s rights, as well as their sometimes explicitly anti-feminist and anti-Marxist standpoints, their shared storyline of surrogacy as inherently exploitative enables opponents from both these ideological camps to act in agreement when it comes to surrogacy. As late as 2019, the Christian Council of Sweden argued against policy changes to make the process of establishing legal parenthood for surrogacy-conceived children born abroad smoother, arguing that such a change ‘does not contribute to stop the exploitation of these women’ (SvD, 13 June 2019). There are also several examples of opinion pieces which are cosigned by a long list of organizations arguing against surrogacy, including both feminist actors (NGO’s, MPs, activists), Christian organizations, and sometimes interest organizations for adoptees (who have become increasingly vocal on the issue in recent years) – demonstrating precisely the power of this storyline to unite these otherwise radically divergent political actors in a discourse coalition. In relation to this, it shall be noted that both feminist and conservative actors – through the shared storyline of surrogacy as human trade and exploitation of women – articulate ‘women’s rights’ by positioning women as particularly vulnerable subjects, in need of particular rights based on their specific position as women (see e.g. Brown 2000, 232). Furthermore, it shall be noted that neither of these opponents are positive to permitting altruistic surrogacy in Sweden either, thus making all forms surrogacy equal to exploitation by combining it with arguments about womanhood, pregnancy and maternal attachment. Here, we argue that the storyline of ‘surrogacy as exploitation and human trade’ plays a central role in contributing with affective force to the argument. Associations to poverty and vulnerability of surrogates effectively creates an affective ‘spill-over effect’ in articulating surrogacy as ‘intrinsically wrong’ and dehumanizing of women, whose rights are best protected by a total ban. Surrogacy as a feminist issue: the pro-choice storyline The second storyline, which we have named ‘the pro-choice storyline’ rather draws on a liberal and universalist discourse of bodily autonomy as a matter of ‘free choice’. Although both opponents and proponents would all argue that they promote women’s bodily autonomy, the proponents do so by appealing to the strong public support for free and CRITICAL POLICY STUDIES 9 safe abortion and strong official norm of gender equality. From this point of view, then, women shall not be understood as particularly vulnerable, but capable of making decisions about whether or not they wish to be pregnant, also with someone else’s child. Not permitting surrogacy, then, is articulated as something which prevents women from exercising their reproductive rights, and therefore actually threatens their bodily integrity. Relatedly, the main line of conflict between opponents and proponents is being drawn around arguments around whether surrogacy is compatible with gender equality or not. Although many feminist- and women’s organizations, argue that it is not, some proponents argue that a ‘true pro-choice policy’ would allow women to make their own decision not just when it comes to terminating a pregnancy, but also to making their own decisions to be a surrogate. In a 2011 article signed by the chair of The Swedish Federation for Lesbian, Gay and Transgender Rights (RFSL): ‘Every human being shall have the right to use their body as he or she wishes’ (28 February 2011, Aftonbladet). This argument has also been used more recently by other proponents, both representatives of the Association for Surrogacy and representatives for the Moderate Party. In 2018, eight representatives of the party’s woman’s section and Anna Kulldendorff representing the association argue, for instance that since uterus donations are allowed so should surrogacy: ‘In those cases, women are believed to be fully capable of making decisions concerning their own bodies. [. . .] We stand up for women’s equality and right to make decisions about their own bodies.’ (Aftonbladet, 2 January 2018). Representatives for the Association for surrogacy also use the pro-choice storyline, here likening the current legislation and its consequences with abortion bans, and an intertextual reference to the 1960s, when the restricted abortion law drove many women to travel to Poland for the procedure (Lennerhed 2008). The issue of surrogacy has strong similarities with the issue of abortion. [. . .] Just like in countries that ban abortion, [a ban on surrogacy] will result in [negative consequences for] those with less resources. (Svenska Dagbladet, 21 November 2018) Although most texts are concerned with the prospect of permitting non-paid/altruis- tic surrogacy in Sweden, a few writers associate ‘women’s right to choose’ with surrogates’ right to get paid for their reproductive labor. This otherwise rare argument has, for instance, been raised by Andreas Bengtsson (medical doctor and himself father through surrogacy), who argued in favor of transnational com- mercial surrogacy, but also that surrogacy is an issue of labor rights and the right to unionize (Aftonbladet, 17 June 2012). Similarly, in his criticism of feminist mobilization against surrogacy in relation to the congress Nordiskt Forum (Nordic Forum) in the city of Malmö, gathering a number of feminist organizations, philosopher and author of the book Det förbjudna mödraskapet (Forbidden Motherhood) Kutte Jönsson 2004 accuses them of neglecting feminist argu- ments for surrogacy. He argues that surrogacy is no more exploitative than any other form of work, and that acknowledging it as a profession would enable surrogates to engage in unions. These feminist organizations, he argues, are actually challenging some of ‘feminisms most important historical victories and values’, such as ‘the right to control [one’s own] reproduction and the right to paid labor’, both of which are political demands resting on the overarching principle of bodily self-determination 10 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN (Aftonbladet, 14 June 2014). In relation to a political pro-surrogacy campaign arranged by the Moderates in relation to Stockholm Pride in 2019 that gained widespread media attention, two representatives of the Free Moderate Student Association argued along the same line – against their mother party – that the Moderates’ campaign for altruistic surrogacy is illogical, and that permitting paid surrogacy is the only way to ‘stand up for women’s absolute right to their bodies’ (SvD, 2 August 2019). The rights of involuntarily childless people: “It is not a right to have a child (but . . .) In the negotiations of the meaning of (reproductive) rights of involuntarily childless people, there is a clear tendency to include everyone who cannot conceive through intercourse, not only those with a medical diagnose of infertility but also, for example gay male couples and sometimes also single men. Much of the debate coheres around the extent to which ‘child-longing’ (barnlängtan – the Swedish word to describe a strong, nearly insurmountable, desire to have children) ought be accommodated by way of legislation, and by way of which reproductive technologies. This idea is frequently articulated with the storyline of ‘it is not a right to have a child’, which is used to support arguments both for and against surrogacy. Among proponents, the expression is often followed by a rhetorical ‘but . . . ’, either responding to a previous article or signaling an anticipation of this as a counterargument. Four Moderate MPs, for instance, argued already in 2011 that the legislation was outdated and impacted involuntarily childless people negatively: ‘The legislation on involuntary childlessness is a mess of contradictions where outdated regulations and moralism clashes with technological possibilities and people’s desires’. Therefore, they argue, involuntarily childless people are ‘forced’ into ‘legal outskirts’, by going abroad for surrogacy where they do not really ‘know under which conditions the [surrogate] mothers live’. The question [of surrogacy] ought to be about how we can accommodate those who so strongly long for children, without having the aberrations that we are afraid of, for example the exploitation of poor women. There are juridical and ethical problems that need to be solved, like for example what happens if one of the parties changes their mind. (Svenska Dagbladet, 16 October 2011). Even though also notions of ‘modern family formations’ appear in the article, the main argument for investigating a legal framework for surrogacy is the idea of ‘child-longing’ as universal, rather than restricted to heterosexual couples (see also Gunnarsson Payne 2018). The articulation of individual liberty, responsibility and child-longing as a strong, if not unstoppable, psychological force leads to the conclusion that surrogacy shall be permitted. This understanding of child-longing as an insurmountable and unstoppable force is commonly used by proponents of surrogacy – often in combination with descriptions of how common it is that many years of failed attempts to become parents have preceded such a decision – to argue that no legislation will be able to stop people from having children this way. CRITICAL POLICY STUDIES 11 Surrogacy opponents such as for example the Swedish Women’s Lobby thinks that having children is not a right. No, it is not a right. [. . .] But we all do what we can for our wellbeing and to survive. We do what we can because the technology exists. (Svenska Dagbladet, 1 December 2014) Similarly, the two MPs Erika Ullberg (Social Democrat) and Anna Starbrink (Liberal Party) argue that although it might not be a right to become a parent, ‘neither should the state make it harder for people to realize their dream of [having] a child’. To this end, they propose a new legislation, as well as a cross-party agreement on how to improve the conditions for existing parents through surrogacy and their children (Aftonbladet, 28 July 2016). Another article authored by eight representatives for the Moderate Party and one mother through surrogacy argues along the same lines that regardless of legislation, ‘people who wish to have children through surrogacy will continue to turn to clinics abroad’ (Aftonbladet, 2 January 2018). This interpretation of reproductive rights articulates on the one hand a liberal under- standing of the state (which according to this view, ought not to interfere with the reproductive decisions of its citizens), and on the other hand the notion of child- longing as an unstoppable driving force. When used this way, this storyline is granted its affective force by references to the suffering that unfulfilled child-longing causes. Child-longing also appears in articles by two representatives for the surrogacy industry (one agency owner and one lawyer specialized in surrogacy) defending their companies from criticism, arguing that they follow ethical guidelines for transnational surrogacy: ‘This strong yearning [for a child] shall obviously not lead to surrogacy being carried through at any price.’ (SvD, 28 October 2017). Some opponents, however, articulate child-longing in terms of ‘wants’ rather than ‘needs’. Liberal editorial writer for DN, Hanne Kjöller argues that the wishes and happiness of the involuntarily childless need to be weighed against the medical and psychological risk of the surrogates (DN, 24 February 2016). Other opponents argue with a more compassionate tone that although unfulfilled child-longing may indeed cause deep suffering, it can never trump other, more important, values. In a heartfelt response to a pro-surrogacy editorial in DN, Catholic columnist John Sjögren, for example, argues in SvD that despite his own and his wife’s own child-longing and experience of involun- tary childlessness he does not consider having children as ‘a right’. For him, the normal- ization of surrogacy is linked to ‘a kind of voluntarism and a [way of thinking about rights] that has run amok: I want something, therefore I have a right to it’. Alluding to child-longing as a reason for permitting surrogacy, he argues, is based on a confusion between wishes and rights, and surrogacy is wrong because it entails reducing another human as a means to an end (Svenska Dagbladet, 5 August 2019). The right to form a family and the rights of all families In the highly secularized liberal democracy of Sweden, also the most religiously con- servative authors draw on a discourse of rights in their argumentation against surrogacy. Arguments openly embracing a conservative heteronormative family ideal were more or less non-existent in the debate. Instead, ‘rights of the family’ frequently appeared in terms of proponents of surrogacy arguing for the right for everyone to form a family, and equal rights for all families (including those formed by way of surrogacy). 12 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN In an opinion piece strategically published on Mother’s Day in 2010, for example, Urban Johansson and Sten Holmström from the ‘masculinist’ men’s rights network ‘Moderate Men’ argue that surrogacy is not only an issue of LGBTQ-rights but also one of gender equality. They are speaking on behalf of gay men as well as single women (that at the time could not access assisted reproduction in Sweden) and single men, and framing it in relation to what they see as a systematic discrimination of fathers in Swedish society. In the name of equality, they argue, men (single and in same-sex relationships) ought to have the same right to form families as lesbian and heterosexual women. In addition, they point out that increased reproductive rights for lesbian couples have led to difficulties for gay men to arrange reproductive constellations with women. The systematic discrimination that Swedish fathers seem to be subjected to in custody battles, when the authorities constantly side with the mother, has also made Swedish gay men regard surrogacy as a safer and legally secure way to parenthood than forming a family with a female friend or a lesbian couple. (SvD, 30 May 2010) In another text from 2010 a representative of RFSL’s youth section similarly argue in favor of the rights of all families, and articulate the right to form a family through surrogacy with such right claims: ‘The central ideas in a modern family politics is that human lives look different and that politics see and acknowledge this’ (Aftonbladet, 10 April 2010). Similarly, in a polemic against the Christian Democrats and their rhetoric of family friendly politics, the two moderate MPs Maria Abrahamsson (a well-known voice on the political right in debates on gender and feminism) and Olov Lavesson argue that permitting surrogacy would be a logical continuation of previous legislative reforms to make marriage legislation and access to assisted reproduction more inclusive. For them, obstructing the possibilities to conceive through surrogacy is incompatible with ‘good conditions for all families’, as well as women’s freedom ‘to help childless couples regardless of gender’ to form a family. (Importantly, however, they think that any costs for a surrogacy arrangement should be paid by the intended parents themselves, rather than be state funded.) (Aftonbladet 31 October 2010). Contested children’s rights: the right to one’s parents Considering that surrogacy among Swedish residents is a rather novel phenomenon, it does not come as a surprise that the participants in the debate do not include surrogacy- conceived persons themselves; most of them would simply be too young. Having said that, both opponents and proponents claim, in different ways, to represent the rights of surrogacy-conceived children. A rare argument represents a rather similar standpoint to Ekman’s and others (mentioned above) concerning the intimacy between pregnant person and fetus, emphasizing so-called pre-natal attachment (see e.g. Teman 2008). In an article from 2013, for example, poet and cultural critic Helena Granström argue that the process of pregnancy and the relationship that is formed between mother (by which she means the surrogate) and fetus shall not be ignored (DN, 8 March 2013). Another rare voice is author and pensioner Margareta Burman, who identifies as surrogacy-conceived and has written two autobiographical books about how her birthmother, a live-in maid in the 1930s, fell pregnant with her through an arrangement with her employer – a tragic story in which her mother ultimately took her life. Emphasizing CRITICAL POLICY STUDIES 13 the importance of the prenatal bond, she argues against Liberal MP Barbro Westerholm’s pro-surrogacy stance, arguing that ‘if she does not understand what it means for a woman to hand over the child she has carried under her heart and shared her bloodstream with for nine months’ she may not be particularly wise, continuing: ‘When my mother realized what she had agreed to, she took her life.’ (DN, 2 July 2019). In this interpretation of surrogacy, the pregnant person's and the child’s rights are intrinsically intertwined. The mother is defined as she who carries the child, and thus the child has right to its ‘real’ mother. Children's ‘right to know their origins’ is raised by some, who argue that surrogacy- conceived children ought to have the same right as adoptees and donor-conceived have in Swedish law. Two of the undecided texts, both written by social workers with experience of adoption processes and family court issues, express hesitation about the practice. One of them argues for the importance of support for parents of surrogacy- conceived children in dealing with potential questions their child might have about their conception (SvD, 13 December 2014). The other expresses concern about how children might feel about the (assumed) plight of the surrogate, as well as the fact that the father 'has paid a poor woman to give birth to his child'. (SvD, 30 October 2010) When the opponents appeal to children’s rights to justify their standpoint, the storyline of ‘surrogacy as human trade’ reoccurs in the argument that surrogacy is a kind of child trafficking, and that surrogacy clinics are essentially ‘baby factories’. Some of them speak of surrogacy as ‘production’ of children – sometimes associating it with eugenics. Headlines such as ‘Stop all trade with baby factories’, and ‘Put a stop to the trade with the unborn children’ are common in the material (e.g. Expressen, 28 February 2011). As with the storyline of surrogacy as human trade in women, it is also strongly overrepresented in articles by women’s NGOs and political parties (especially female MPs and women’s sections) on the left side of the political spectrum, but also used in articles signed by the Christian Council of Sweden and the Christian Democrats (and occasionally others, e.g. Green MPs). It has also emerged in commentary of international news about surrogacy scandals. The storyline of surrogacy as human trade (‘baby selling’, ‘child trafficking’) is often vehemently rejected by surrogacy proponents for being both insulting and untrue. Once it is used by Liberal MP Barbro Westerholm, who argues that altruistic surrogacy ought to be permitted in Sweden, precisely to avoid commercialization and its aberrations (Aftonbladet 7 March 2013). If the emphasis of the opponents, including those demanding a stop to ‘baby selling’, is mainly placed on preventing the birth of more surrogacy-conceived children, the propo- nents rather focus on the rights of surrogacy-conceived children who are already born, and the rights which for them are tied to the parental status of the (intended) parents. A particularly central issue concerns problems related to obtaining citizenship and lengthy juridical and administrative processes in determining legal guardianship for surrogacy- conceived children born under the existing legislation, and the opponents are often accused by proponents for promoting moralism at the expense of children. In 2015, Andreas Bengtsson criticizes the Swedish Women’s Lobby for being in alliance with the Conservative Christian organization CBC in demanding a halt to ‘a project in Haag that was started to find international solutions for how children born through surrogacy shall be guaranteed legal guardians and citizenship so that they are not harmed’ and rhetorically asks how such an action promotes the human rights of newborns (Expressen, 19 May 2015). 14 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN As the Parliament in August 2018 voted yes to make the UN convention for the rights of the child part of Swedish law, both proponents and opponents began referring this decision to support their respective case. Proponents emphasized its paragraphs on citizenship and guardianship, while opponents focused on the right for children to know their origins, their right not to be abducted, and their right not to be bought and sold. Under the headline ‘Protect children born by a surrogate mother’ a moderate MP and the family lawyer Emma Dahlén argue, for instance, that Swedish policy makers ought to rectify the ‘legal vacuum’ in which surrogacy-conceived children born in Georgia and Ukraine live for the first weeks of their lives, who are deprived of their rights as Swedish citizens: ‘All of these children have a genetic father with Swedish citizenship, thereby the right for Swedish citizenship is an un-debatable fact’ (SvD, 21 August 2019). For the most vehement opponents, instead, the forthcoming law is used as an argu- ment for criminalizing surrogacy abroad. In an op-ed, a long list of NGO’s and activist networks (feminist, human rights organizations and associations for adoptee rights) argue that ‘Sweden ought to follow France, Italy and Germany that all have introduced a total ban of [this] trade’ and demand Swedish legislators to ‘cover the [legal] loopholes that today are used by international surrogacy companies’. They write that surrogacy is opposed to ‘the UN convention of the Rights of the Child about the child’s right to know their origins, as well as the right not to be abducted, sold or traded with, regardless of aim and form’ (SvD, 9 October 2019). Rights discourse ‘in action’ in the surrogacy debate: concluding reflections The fact that the Swedish surrogacy policy debate since its inception in 2010 has mainly been centered around different articulations of (more or less abstract or concrete) rights may not be very surprising. Indeed, as Paul Rabinow has stated, despite the fact that ‘there are governments who contest and combat “rights talk” (and the groups who articulate it) on a variety of grounds, including national sovereignty and traditional culture’ there is likely no other secular discourse which carries the same potential for countering them (2002, 144). In that sense, the Swedish surrogacy policy debate is very much ‘a child of its times’, not just with regards to its very object of debate, but also insofar as that it deals with more overarching issues central to contemporary liberal democracies – and especially so a set of (ultimately unresolvable) tensions between different articulations of individual autonomy and ‘common good’, particularism and universalism, and the inbuilt gap between abstract (human) rights and their legal implementation into citizen rights – which are all intimately intertwined with rights discourse and -practice (see also Rancière 2004). Taking the cue from Rabinow, we argue that a central task for humanities and social science scholars is to explore how this set of discursive practices are taking shape in practice (Rabinow 2002, 143). While many thinkers have (rightly) criticized the ‘vacuousness’ of human rights discourse, this precise vacuousness is actually a prerequisite for their centrality in the Swedish surrogacy policy debate. Indeed, it is the very ‘emptiness’ of rights that make them so open for hegemonic contestation and polarization between the two discourse coalitions that have been identified in the debate (see also Chambers 2003; Rancière 2004). CRITICAL POLICY STUDIES 15 To summarize our findings, the main dividing line between the two discourse coalitions in the Swedish debate – on the one hand, the liberal coalition and the coalition between (radical) feminists and conservatives on the other – concerns the role of the state in interfering (or not) in the intimate lives of citizens in order to protect a set of different rights. For the more liberal- minded discourse coalition arguing for a more permissive legislation, the different rights mentioned are described as best protected by minimal state intervention when it comes to citizens’ reproductive decisions as well as equal and universal implementation of citizen rights and welfare provisions regardless of gender, sexuality or civil status. The opposing discourse coalition is united by a more interventionist understanding of the state’s role with regards to the issue, as well as a more particularistic understanding of women’s rights, which are understood as best protected by preventing surrogacy as a practice, both in Sweden and abroad. While the pro-surrogacy coalition gains its affective force from a universalist articu- lation of ‘child-longing’ (an unstoppable and painful desire to have a child of one’s own), the anti-surrogacy coalition draws its affective force from the storyline of surrogacy as exploita- tion and human trade in women and children. For the former, the main subject articulated as those deprived of their rights in current legislation are involuntarily childless people; for the latter, those deprived of their rights by current policy are the women acting as surrogates in transnational surrogacy arrangements (while they argue that the current policy protects Swedish women from reproductive exploitation). Importantly, however, in the Swedish context – a country since long priding itself for its extensive commitment to gender equality – both sides seek to gain legitimacy though positioning themselves as protectors of women’s rights, but without agreeing on of what these rights shall consist. This unresolvable tension between them can be located in what Wendy Brown (2000) has defined as a paradox in rights discourse in feminism: that on the one hand, ‘the more highly specified rights are as rights for women, the more likely they are to build a fence insofar as they are more likely to encode a definition of women premised upon our subordination in the transhistorical discourse of jurisprudence’, but on the other, ‘the more gender-neutral or gender-blind a particular right (or any law or public policy) is, the more likely it is to enhance the privilege of men and eclipse the needs of the women as subordinates’ (Brown 2000, 231). Consequently, we argue that the stance whereby surro- gacy is described as intrinsically exploitative of women and children (whose rights are best protected by banning it) risks essentializing women’s role in reproduction and ignoring a range of existing reproductive desires, experiences and arrangements, while the stance that universal reproductive rights for all are best protected by allowing it instead tend to downplay the specific needs and experiences of the pregnant person (which are tied to their specific physiology and social gendered position). To conclude, during the studied decade, the debate has remained polarized with little change in argumentation, use of storylines or emergence of new standpoints – and, in line with Koch-Baumgarten and Woltmer’s observations, new actors have joined and taken sides rather than adding new arguments and perspectives on the phenomenon (2010, 5). Undecided articles are few and far between, as are any concrete policy proposals of more concretely how surrogacy could be integrated in Swedish legislation or, conversely, the potential social and legal consequences of a total ban. If, as Koch-Baumgarten and Woltmer (2010) have argued, uncertain policy situations are making policy makers more receptive to media representations, it may be said that the current ‘split policy’ is a pragmatic result of the decade-long polarization on the issue, in which surrogacy is neither really permitted nor 16 J. GUNNARSSON PAYNE AND M. HANDELSMAN-NIELSEN really banned. Consequently, despite evidence of rising numbers there are still no official statistics of surrogacy, and despite efforts to smoothen the process to achieve the legal status of surrogacy-conceived children (MFoF 2021), these children exist in legal limbo for the first period of their lives. While this pragmatic solution helps to ensure that surrogacy- conceived children are granted some important citizen- and human rights (e.g. the right to parents) more swiftly than before, it does very little to ensure any of the rights that either opponents or proponents argue for. Notes 1. Mika Handelsman-Nielsen conducted searches and organized the material for 2009-2018 and identified actors and overarching thematic tendencies in the material. Main author Jenny Gunnarsson Payne conducted the overarching analysis, made complementary searches (especially for 2019) and wrote the final version of the article. 2. The report by Napoleon AB had been issued by the surrogacy agency Tammuz Nordic Surrogacy. 3. Even though this is not the focus of this article, it is important to note that media representations and debates of the phenomenon also affects those involved in or affected by surrogacy, for instance in terms of expectations on the process (Teman 2019), or stigma and charges of exploitation (Arvidsson et al. 2015). 4. Among those arguing for a more permissive legislation, there is a broader variety in opinion, especially with regards to commercial surrogacy (which some proponents argue is wrong). 5. To this end, the project within which this study has been conducted promotes, as an alternative to this dead end, a relational approach to surrogacy and reproductive justice. This has been discussed to some extent in Gunnarsson Payne, Mezinska, and Korolczuk (2020), and is currently being developed in further publications. Disclosure statement No potential conflict of interest was reported by the author(s). Funding This work was supported by the Östersjöstiftelsen [3152–3 1.1.2017]. 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Journal

Critical Policy Studies – Taylor & Francis

Published: Jul 3, 2023

Keywords: surrogacy; assisted reproductive technologies; Sweden; policy debate; hegemonic processes

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