Academic

Newsweek/Surrogacy II

By Julie Shapiro

Yesterday I noted the current Newsweek cover story on surrogacy. Here’s a bit more to think about in that regard. I’m prepared to assume that the practice of surrogacy is useful. (Even if I weren’t, I’d have to acknowledge it is here to stay. It may be banned or restricted in some states/countries, but it will be available in plenty of others.) The question then for me is what’s the best set of rules for surrogacy. Of course, “best” will depend on your point of view. I want to try to ask the proverbial “woman question” and answer this as a feminist. The Newsweek article invites us to focus on the surrogate’s experience as well as the relationship between the contracting couple and the surrogate. This seems to me to be critical, especially as the surrogate will always be a woman and, as I’m partway through demonstrating elsewhere on the blog, the issues for a woman in the contracting couple are also distinctive.More… It’s interesting to compare the experience in the UK with that here in the US. (I don’t profess real expertise on this, just the gathered impressions from what I’ve read. If there is a real analytical work on this, I’d love to hear about it.) Formally the law is quite different. In the UK surrogacy is not a for-profit enterprise, the surrogate cannot be paid, and the contract is not enforceable. In the US–or at least in the featured states in the US–it is for profit, surrogates are paid and the contracts are enforceable. I’ve already argued that these things are not chance alignments–surrogacy can only exist as a profitable industry if surrogates can be forced to turn over the children. It’s interesting to contrast the accounts of surrogacy (from the surrogate’s viewpoint) in the UK and in the featured US states. For starters, note that the surrogates in the UK do receive money for “expenses” and that it seems to be roughly on the same scale as the money received here. So from a narrow economic view, the two systems are more similar than they appear. But, since the women in the UK have the right to change their minds, their willingness to turn over their children to the intended parents is crucial. Unsurprisingly, this willingness is fostered by a positive relationship between the intending parents and the surrogate mother. In other words, the intending couple have every reason to treat the surrogate with dignity, respect, and good will. And the system usually works–the instances in which the surrogates women change their minds appear to be few. It’s easy to see that the dynamic in the US could well be quite different, though this is not to say it always will be. If the contracting couple knows that the surrogate can be forced to turn over the child, they may choose to assert their authority in any number of ways. Indeed, to the extent surrogacy is likened to baby-sitting, they might tend to treat her as you would a babysitter. On this point, I’d say there’s ample reason to prefer the system in the UK. It appears to allow surrogacy without inviting the more disturbing aspects of surrogacy. It respects the dignity of the women who are surrogates and recognizes their unique role. There’s another important point, of course. The real money in the US isn’t made by the surrogates themselves–it is made by the surrogacy centers that facilitate surrogacy. That is what truly makes it into a for-profit enterprise.

Julie Shapiro–cross posted to Related Topics

Full post as published by Feminist Law Professors on April 01, 2008 (boomark / email).