Surrogacy involves the gestating of a fetus by one woman, the surrogate mother, with the understanding that the baby she bears will be raised by another person or couple, usually including the man who contributed the sperm. In what is known as traditional surrogacy, the surrogate mother is artificially inseminated, contributing her own egg to the fetus. In gestational surrogacy, the embryo is produced through IN VITRO FERTILIZATION (IVF) and implanted in the surrogate mother.
Surrogacy, while resembling practices familiar to many times and cultures (for example, the practice in traditional Chinese families of a concubine's sons becoming the ritual and legal children of the primary wife in cases where the primary wife did not bear sons), was first legally and socially recognized in the United States in 1980. It has received a great deal of critical attention and debate in the United States and Europe, especially in cases where surrogacy has been commercialized through payment to the surrogate mother or to a for-profit surrogacy agency. By 2000, commercialized surrogacy had been banned in most of Europe and North America.
Social and religious conservatives have opposed surrogacy because it separates sex, reproduction, and family creation, thereby challenging the "natural" basis for the heterosexual nuclear family. Some feminists have supported surrogacy for the same reason, but debates over surrogacy have made clear fundamental differences among feminist philosophies regarding reproduction. Some feminists have compared surrogacy to slavery and prostitution, arguing that surrogacy is likely to become a means of exploiting poor women's sexual and reproductive capacities by wealthier women and men. Others, emphasizing reproductive choice for women and the right of a woman to control her own body, have argued that just as people are allowed to choose dangerous jobs such as fire fighting, they should be allowed to take on the physical and psychological risks of surrogate mothering, with the caveat that surrogate mothers should retain legal control over their bodies during the pregnancy, and that they should be significantly better paid than they are currently.
Contested surrogacy agreements, debated in court, have served as a focus for contemporary public discussion. In the late 1980s, public attention was riveted on the case of Baby M, in which a "traditional" surrogate mother tried to break her contract and keep the baby she had birthed. Notably, the arguments on both sides of the case, as well as the judges' decisions, were made in terms of upholding the "traditional family." William Stern, the biological father, argued that surrogacy was a legitimate mode of infertility treatment to provide the traditional family he and his wife desperately wanted. Mary Beth Whitehead, the surrogate mother, argued that she had grown unexpectedly attached to Baby M as a natural part of gestating a fetus, and that this natural connection between baby and mother should not be broken. On appeal, the New Jersey Supreme Court ruled that the commercial surrogacy contract was illegal under New Jersey laws prohibiting baby-selling, and treated the case as a custody battle between two parents, Stern and Whitehead. Critics pointed out that Stern received custody based on criteria, such as financial stability, which favored the higher-income party, and that these criteria will almost always be biased against the surrogate mother. Surrogacy is likely to remain controversial as long as biology is regarded as the "natural" basis for social parenting; two-parent, heterosexual, nuclear families are considered the norm and the ideal; and economic and social inequities leave some women particularly vulnerable to exploitation.
Cohen, Sherrill, and Nadine Taub. 1989. Reproductive Laws for the 1990s. Clifton, NJ: Humana Press.
Dolgin, Janet L. 1997. Defining the Family: Law, Technology, and Reproduction in an Uneasy Age. New York: New York University Press.
Farquhar, Dion. 1996. The Other Machine: Discourse and Reproductive Technologies. New York: Routledge.
Hartouni, Valerie. 1997. Cultural Conceptions: On Reproductive Technologies and the Remaking of Life. Minneapolis: University of Minnesota Press.
Holmes, Helen B. 1992. Issues in Reproductive Technology I: An Anthology. New York: Garland Publishing.