A Commentary on Four Papers on Surrogate Motherhood

Author(s): Andrea Bonnicksen

Source: Politics and the Life Sciences, Vol. 8, No. 2, The Politics of Surrogacy Contracts
(Feb., 1990), pp. 195-198
Published by: Cambridge University Press
Stable URL: https://www.jstor.org/stable/4235686
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COMMENTARY

A Commentary on Four Papers on Surrogate Motherhood

Andrea Bonnicksen

Department of Political Science

Eastern Illinois University
Charleston, IL 61920

When the Glover Commission met in Europe to arrive at
a report and recommendations on the ethics of new repro-
ductive technologies, the members usedaprocess of "mutual
adjustment" of theory and intuition to "reach a state of
equilibrium, where we have a stable set of principles and of
intuitions, which are in harmony with each other" (Glover
et al., 1989:30-31). The articles on surrogacy in this special
issue can be evaluated based upon the extent to which they
reach "intuitively acceptable resolutions." Can four au-
thors, writing independently and from different discipli-
nary perspectives, arrive at judgments that will help build
points of consensus about the highly controversial practice
of surrogacy? This review seeks to identify some bases for
"intuitively acceptable resolutions" in the approaches and
conclusions of these authors.
Woliver approaches the question of surrogacy from the
point of view of surrogates and women. She does not
roundly condemn surrogacy nor propose detailed regula-
tory policy. Instead, she presents a perspective on the
question of surrogacy policy. According to Woliver, poli-
cies of any kind must be "sensitive to the realities of
women's lives" and must be used to build "female-in-
formed" legislation. Surrogacy is unique because it in-
volves a pregnancy, a nine-month period of time in which
a continuous experience takes place. Policy recommenda-
tions have been diverse, as Woliver illustrates by her
description of the disparate conclusions reached by Lori
Andrews, Martha Field, and Barbara Katz Rothman. Still,
Woliver argues that a critical basis for policy can be
formulated in which the "nurturing relationship" of the
pregnancy experience is not overlooked in the policy de-
bate.
Woliver's approach is based not only upon the interests
of the surrogate in particular but of women in general. As
a low-technology practice, surrogacy nevertheless fits into
the spectrum of high-technology conception techniques as
well as the trend toward the "medicalization" of all aspects
of reproduction. Medical technologies, Woliver argues,
perpetuate women ' s powerlessness by pushing them to the
periphery of decision-making. An analogy can be drawn to
the theory of economic dependency in the global market, in
which nations with lower per capita incomes (peripheral
states) are dependent upon the policies of richer nations
(core states). Dependency occurs when a nation's eco-
nomic decisions are made by persons outside the country.
In the surrogacy context, surrogates are the "peripheral"
actors and physicians and adoptive parents are the "core"
actors. If the contracting couple is wealthier than the
surrogate, the surrogate's powerlessness is compounded by
class distinctions. Woliver worries that those persons who
want to define the fetus as life will become yet another core
power diminishing women's control over reproduction.
Woliver believes that the theme of power and powerless-
ness must be part of the debate on surrogacy. More is at
stake than the wording or enforcement of contracts. Surro-
gacy, along with sophisticated techniques, has the capacity

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 196

to make women marginal in the reproductive process. develops during pregnancy, stating that it has been "so
Empowerment of mothers should direct the formulation of thoroughly debunked by feminists, among others, as to
policy. leave its status completely untenable." He cites a single
source, dated 1971, to support this conclusion. Yet earlier
Hill approaches surrogacy from the point of view of the he claimed that "mere biology" should not be the defining
contracting couple. He reviews in detail the reasons couples characteristic of parenthood. According to Hill, the idea of
turn to surrogacy and, in so doing, presents the couple's gestational woman as "mother" is a "primordial intuition"
wish for a child as the central rationale behind it. He that needs to be rethought.
presents what has come to be a traditional three-part dis-
tinction among policy options: (1) forbidding surrogacy Hill's alternative to the gestational definition of mother-
altogether; (2) introducing the nonenforceable contract in hood is what he calls the intentional theory of parenthood.
which the state will "recognize" surrogacy contracts but This theory, which has some precedence in the legal pre-
will not enforce them if the surrogate wants to keep the sumption of paternity in consensual donor insemination,
baby; and (3) introducing the enforceable contract in which suggests that parenthood revolves around the intent to have
the state recognizes and enforces the contract. In the last and raise a child. It is not primarily a function of one's
option the surrogate is not free to keep the baby if her biological contribution to conception and gestation. Inten-
decision falls outside of the terms of the surrogacy contract. tionality is demonstrated when the couple: (1) intends to
have a child; (2) takes steps to have it; and (3) has the
Hill evaluates the options using a benefit/harm model. capacity to raise the child. The couple's intention to have
His preferred policy is the enforceable contract option in a child through surrogacy defines their role as parents.
that it imposes the least added burden. His evaluation leans Conversely, although Hill does not state this explictly, the
toward possible harms to the contracting couple and child surrogate's intention of not keeping the child defines her
more than to the surrogate. He asks: Will there be black- role as merely one who performs a service.
mail? Will the child be the subject of a protracted custody
battle? Hill's perspective is distincdy different from Wol- Merrick offers an overview of the many issues that arise
iver's in this regard. He does not take a "female-centered" in surrogacy. In doing so, she warns of the danger of
approach. On the contrary, he evinces concern for the approaching surrogacy from too narrow a perspective.
surrogate's interests only late in the article and then only Many people are involved in the decision and are influ-
narrowly. He recommends that the surrogate be protected enced by it even if they are not directly involved. Her
from the risk of communicable diseases from the sperm approach might be called "family-centered" in that she,
donor, that a hearing be conducted before signing the more than the other authors, points out the potentially
contract to grant to the surrogate a "public acknowledg- harmful consequences of surrogacy for the surrogate's
ment" of the agreement, and that the surrogate be paid for husband and children. Similar to Woliver, she brings up the
services even if there is a miscarriage or stillbirth. He is also experience of pregnancy as an important factor and points
one of the few to raise the question of the couple changing out how surrogacy invites the contracting couple to share
their mind and trying to void the contract. He considers this that experience. Despite recognizing the positive role of
to be unfair to the surrogate and concludes it should "clearly surrogacy in building families, Merrick ultimately draws
be rejected." Despite these recommendations, Hill does not the line at commercial surrogacy. She is the only one of the
regard protection of the surrogate as the primary motivation four authors to do so. The title of her article, "'selling'
for policy. On the contrary, he seems more concerned with reproductive rights," indicates the reason. Surrogacy is a
protecting the couple and potential child from devious commercial sale that "turns the child into a product and
actions by the surrogate. If surrogacy is not enforceable, he devalues that child as a human being." Merrick is more
argues, this opens the door to the possibility that the cautious about assessing benefits and harms than Hill,
surrogate will try to blackmail and manipulate the couple. stating that "[p]erhaps the best we can do is to hypothesize
The willingness to impute the possibility of a malevolent and speculate." Still, she concludes that, when taken as a
intent on the part of the surrogate is another point of "total picture," at present "the balance seems to weigh on
difference between Woliver's female-centered approach the side of prohibiting commercial surrogacy arrange-
and Hill's couple-centered approach. ments."

Another point of difference lies in the way each author Shevory approaches surrogacy not so much from the
views pregnancy. To Woliver it is an experience of such point of view of the people involved but from the point of
magnitude that it demands flexibility in the surrogate view of traditional legal notions of family life. Surrogacy
arrangement. Hill, by contrast, dismisses the idea of a to him is a "hard" test case for a deconstructi ve examination
biologically-determined psychological maternal bond that of contracts and family law. He rejects two opposite

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models: the liberal model in which the state avoids surro-
gacy as a family matter; and the legislative model in which
surrogacy is forbidden as destructive for families. He
acknowledges that "[s]urrogacy as now practiced is a
generally exploitative and harmful practice," but argues
that "it need not be so." He, as Hill, looks to the intention
of the involved parties to understand surrogacy. Unlike
Hill, he focuses on the benevolent intentions of the surro-
gate, concluding that the surrogate may be "undertaking a
humanitarian act" that should be protected.
Of the four authors, Shevory is perhaps the most optimis-
tic about the ultimate good of surrogacy. He suggests that
surrogacy should be regulated by means of contracts.
Surrogacy presents an opportunity for a new kind of con-
tract. He calls this a "genuinely humane alternative," or
what might also be called a "contract with a heart," but he
gives no details. A contract will not be necessary, Shevory
argues, when surrogacy is motivated by altruism, although
he notes it is difficult to assess benevolent intentions. In the
end, Shevory sees surrogacy as an opportunity for disman-
tling the "idealization" of liberal theory that treats the
family as a private unit and also for helping family rela-
tions. In this sense, surrogacy is a vehicle for changing
ideas about family law.
The authors bring to the discussion of surrogacy four
different starting points. Their conclusions are sufficiently
diverse to preclude many "intuitively acceptable resolu-
tions." One can, however, glean from them several points
of agreement that might form the basis for a "stable set
of.. .intuitions" (Glover et al., 1989:30-31).
First, the authors each place surrogacy in a theoretical
framework (power, theory of parenthood, commercialism,
liberalism), thereby indicating that each views surrogacy as
something with broad societal implications. The fact that
the frameworks are different suggests thatagreementabout
theory is a precondition for agreement about what should be
done about surrogacy. In other words, disagreements about
surrogacy to some extent may reflect differing theoretical
frameworks rather than basic feelings about the goodness
or badness of the practice.
Second, each recognizes a possible range of policy
responses to surrogacy with concomitant nuances and
points of negotiation. They agree on the three-part distinc-
tion commonly made between banning, enforceable con-
tracts, and nonenforcable contracts. Contracts emerge as
the orienting vehicle for policy development.
Third, the authors agree that surrogacy demands a re-
thinking of accepted notions about motherhood, parent-
hood, and family law.
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197
Fourth, the authors agree that surrogacy is a practice in
which things easily can go awry. They hold no romanticism
about surrogacy as an ideal solution to childlessness. In-
stead, they ponder how to handle surrogacy in a way that
poses the least danger. This is a defensive posture. Surro-
gacy demands careful handling in order to protect a variety
of people, especially the children born from the arrange-
ment. Finally, none of the authors demands a total ban on
surrogacy. Merrick ultimately concludes that the harms of
commen?ai surrogacy outweigh its benefits, but she leaves
open the prospect of surrogacy without remuneration.
Perhaps die most interesting of the differences among die
authors is the way they view the experience of pregnancy.
Is it a coincidence, on the basis of this extremely small
sample, that the two female writers emphasize the experi-
ence of pregnancy as a compelling factor? Or is Hill's and
Shevory's de-emphasis of this topic the function of the
legal perspective from which they write? Obviously, surro-
gacy divides women, men, and lawyers (e.g., Martha Field
[1988] as a female trained in the law who has reservations
about surrogacy versus Lori Andrews [1989] as a female
lawyer with abundant enthusiasm for it). Still, the differing
priorities the four authors grant to pregnancy is provoca-
tive.
Another difference relates to the question of infertility.
Hill claims that infertility and the reduced number of babies
available for adoption is a pressing social need. Merrick
questions this claim. "Contrary to public perception," she
writes, "infertility is not on the rise in the U.S...The
couples' willingness to seek treatment for infertility" is on
the rise. None of the authors clearly addresses the use of
surrogacy for lifestyle or other nonmedicai reasons.
The authors neglected or only touched on other important
issues, such as surrogate gestational motherhood (SGM).
A rethinking of motherhood and parenthood will demand
that SGM, which occurs when the contracting couple
contributes both egg and sperm, be integrated into the
discussions of surrogacy. In addition, despite frequent talk
of contracts, none of the authors, except Hill in passing,
discussed the specific content of contracts as a policy
question. Detailed reviews of the content of contracts will
eventually be needed for useful discussions of surrogacy
policy. Analyses of the wording, penalties, conditions, and
assignment of responsibilities in contracts will add im-
mensely to the ability to evaluate surrogacy's impact on
women, the adoptive couple, and the nature of parenthood.
Does surrogacy enhance women's reproductive choices or
does it further "marginalize" women in their own reproduc-
tive process? At some point a systematic, impartial exami-
nation of a sample of surrogacy contracts is essential for an
empirically-based understanding of empowerment in con-
tract law.
 198

At one point during the Baby M case, when the Stern

couple and Mary Beth Whitehead were arguing about who
should have custody of the baby (variously called Melissa,
Sara, and Baby M), William Stern secredy taped a conver-
sation in which Mary Beth Whitehead asked, in exaspera-
tion, "[S]o what do we do? Cut her in half?" (New York
Times, 1987:A15). During this and other sordid surrogacy
cases recounted by Merrick and Shevory, societal views
were also fundamentally divided. Few people were quite
sure just what to think. Of the 73 bills introduced in state
legislatures in 1987 alone, "26 would have regulated surro-
gacy, 25 would have outlawed it, and 22 would have called
for study panels" (New York Times, 1988:B7).

Surrogacy divides the political as well as the general

community. The four articles here are representative of
several positions on the broad spectrum of political and
societal debate. One can conclude from these articles that
it is important to examine the fundamental concepts by
which people understand surrogacy. Understanding the
roots of value differences is at least as important as docu-
menting the practice of surrogacy and the content of
surrogacy contracts. Whether one views surrogacy from
the perspective of the surrogate, the couple, the family, or
the law, all observers must eventually meet in the middle of
the policy arena.

References

Andrews, L. (1989). Between Strangers: Surrogate Moth-

ers, Expectant Fathers, and Brave New Babies. New
York: Harper & Row, Publishers.

Field, M. A. (1988). Surrogate Motherhood. Cambridge,

Mass.: Harvard University Press.

Glover, J., et al. (1989). Ethics of New Reproductive Tech-

nologies: The G lover Report to the European Commis-
sion. DeKalb, 111.: Northern Illinois University Press.

New York Times (1988). "Legislators Are Hesitant On

Regulating Surrogacy." Feb. 2:B7.

New York Times (1987). "Transcript Excerpts." Feb. 5: A15.

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