For Love and Money: The Political Economy of Commercial Surrogacy

Author(s): Debora L. Spar

Source: Review of International Political Economy , May, 2005, Vol. 12, No. 2 (May,
2005), pp. 287-309
Published by: Taylor & Francis, Ltd.

Stable URL: https://www.jstor.org/stable/25124020

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Review of International Political Economy 12:2 May 2005:287-309 Sx T<ytor*Franc?sGrouP

For love and money: the political economy

of commercial surrogacy
Debora L. Spar
Harvard Business School

ABSTRACT
Since the 1980s, the international market for commercial surrogacy has grown
at a quiet but considerable pace. Each year, thousands of women agree to
carry, for a fee, the child of another woman. Thousands of babies are born a
a result on shaky legal legs: conceived by one set of parents yet claimed by
another. Most of these children were born in the market as well as the womb,
the product of desire combined with the ability to pay. The central argumen
of this paper is that surrogacy must be approached as a commercial relation
ship. There is already an active international trade in the components of bab
production - wombs, sperm and eggs. There are rapidly advancing technolo
gies that are certain to expand both the demand for surrogacy services and
the supply of surrogate mothers. Yet the underpinnings of the surrogacy
market - the rules, laws, rights and contracts - have been notably slower to
evolve. Legislative bodies in both the United States and Europe have been
loath to deal directly with the issue of surrogacy, intervening primarily in th
form of prohibition. Yet because the demand function in this market can b
so intense, couples are entering into surrogacy arrangements even when the
suspect that the underlying contract is either illegal or unenforceable. Fund
mentally, commercial surrogacy is an issue of political economy. It involves
an economic relationship that sits within a deeply political calculus, one that
goes to the very heart of political economy. What, the debate over surro
gacy asks, can legitimately be sold in a market transaction? Who decides?
And how can any authority weigh the desires of having a child against th
dangers of selling one?

KEYWORDS
Surrogacy; reproduction; mothers; international trade; feminist theory;
family law.

"Give me sons/' cried Rachel to Jacob. "Give me sons or I shall die."

(Genesis, 30:1)

Review of International Political Economy

ISSN 0969-2290 print/ISSN 1466-4526 online ? 2005 Taylor & Francis Ltd
http: / / www.tandf.co.uk
DOI: 10.1080/09692290500105615
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

In 1985, the tragic story of Baby M grabbed all the tabloid headlines. It was
a Solomonic tale of love and greed that centered on the tiny child, born to
one mother yet claimed under law by another.
The details were straightforward. A professional couple, Bill and Betsy
Stern, decided not to risk the dangers of childbearing when they learned
that Betsy was suffering from multiple sclerosis. Determined to have a
child 'of their own/ however, they contracted with a surrogate mother,
a 26 year-old woman named Mary Beth Whitehead, and agreed to pay
her $10,000 in exchange for the conception and birth of 'their' child, the
genetic offspring (via artificial insemination) of Bill Stern and Mrs White
head. The pregnancy was uncomplicated and Mary Beth Whitehead abided
by the terms of her contract for nine months. Four days after the baby
was born, though, Mary Beth came to visit the Sterns and disappeared
with the child, later arguing that, 'I signed on an egg. I didn't sign on
a baby girl.' The Sterns called the police; Mary Beth threatened to leave
the country; and for weeks the drama played out in the courts and in
ternational media. Eventually, Bill Stern won sole custody of his daugh
ter and Baby M went home. She was followed in due course by scores
of other children who entered the world on shaky legal legs in the last
decades of the twentieth century, born of one set of parents, yet claimed -
biologically, emotionally, or commercially - by another. Some of these chil
dren were conceived in altruism, with one biological mother producing
what another could not bear. Many, though, were conceived in the mar
ket as well as the womb, the product of desire combined with the ability
to pay.
It is hard to imagine the child as commerce. Babies, after all, are the
product of love, not money, a conception that occurs far away from any
commercial activity. There are, to be sure, numerous cases in which eco
nomic circumstance affects birth rates. Poor parents across time and place
have viewed their children as potential economic assets, weighing their
eventual economic contribution- in the rice field or factory or manor -
against the costs of carrying them through childhood. Parents have cho
sen their children's gender based on economic factors, using infanticide or
abandonment to rid themselves of less-valued offspring. Under the most
desperate circumstances, they have even used their children as direct as
sets, selling them into slavery or indentured servitude. Yet even in these
extreme cases, the act of conception itself is hardly viewed as an economic
act. Instead, it is an inherently intimate form of production, a private 'trans
action' that has nothing to do with either business or society.
However, what happened in the Baby M case was clearly a commercial
transaction. Mr Stern paid Mrs Whitehead to conceive and bear a child. In
addition, the unfolding of the case raised excruciating political and social
questions. Is the 'real' mother in cases of contested surrogacy the woman
who physically bore the child or the one who arranged for its conception?
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 SPAR: FOR LOVE AND MONEY

Should the inevitable conflicts be settled in courts of law or governed by

overarching legislation? Moreover, who should decide the terms under
which reproductive services are marketed and sold?
Many of these questions have been widely aired in political debate. Fem
inists have argued over the alienability of women's bodies; legal scholars
have probed the contractual and jurisdictional issues. There is one criti
cal aspect of surrogate motherhood, however, that has received relatively
little attention. And that is the fact that it is fundamentally a business,
a profit-making enterprise that has expanded dramatically over the past
two decades. Some aspects of this business are heavily regulated: criteria
for adoptive parents, for instance, or prohibitions on baby selling. Many,
though, are left entirely to the quiet whims of the market. There are no re
strictions on the 'donation' of eggs, a transaction that can yield the donor
up to $50,000 per harvest. There are few legal constraints on sperm dona
tion, either, and little screening of prospective birth mothers (Baker and
Paterson, 1995).
This regulatory gap has created an odd conjuncture between the courts
and commerce, with surrogacy businesses sprouting up around those juris
dictions that uphold surrogacy contracts. Courts in California, for example,
have consistently upheld surrogacy contracts, referring to the interests of
the child to decide in favor of the intended parents. As a result, California
is also a vibrant site for commercial surrogacy, accounting for half the reg
istered surrogate agencies in the United States and a majority of surrogate
births (Garrity, 2000). Where courts have denied the validity of commer
cial surrogacy, by contrast, business has understandably suffered, either
with would-be parents going underground or across state lines. There are
as a result quiet clusters of commercial surrogacy around the world, ar
eas in which birth-related businesses thrive. Few of these businesses are
explicitly illegal. Many earn substantial economic returns. In addition, all
are skating on the thin edge of acceptability, offering a service (concep
tion and reproduction) that few will actually acknowledge as a market
sale.
The central argument of this paper is that surrogacy should be - must
be - seen and approached as a commercial arrangement. Already, the mar
ket for surrogacy is large and growing. There are thousands of potential
parents across the world with both the desire and the wherewithal to hire
another woman to bear their children. Some of these parents are traditional
couples, with the wife physically unable to carry her own biological child.
Some are traditional couples in which the wife prefers not to undergo preg
nancy but still wants to create a child that is genetically 'hers.' Some are
homosexual couples for whom surrogacy is the only means of conceiving a
child related to at least one of its parents. Some of these couples employ tra
ditional surrogacy, in which the sperm comes from the father-to-be and the
egg from the surrogate mother. Some use gestational surrogacy in which
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

the egg is donated from a different woman, and some use what might
crudely be called a mix-and-match strategy, blending donated sperm with
donated eggs implanted in a biologically unrelated womb. As the technol
ogy supporting all these variants improves, the demand for surrogacy is
almost certain to expand.
The problem, though, is that the underpinnings of the surrogacy market,
the rules, laws, rights, and contracts, have been notably slower to evolve.
Legislative bodies in both the United States and Europe have been loath
to deal directly with the issue of surrogacy. And insofar as they do deal,
their interventions have mostly taken the form of prohibition. Commercial
surrogacy is banned, for example, in Germany, France, and several Aus
tralian states. It is sharply constrained in Israel and the UK, and in most
of the US states that have taken legislative action in this area (Field, 1990;
Garrity, 2000; Wunderlin, 2002; Deech, 1998). Yet because the demand func
tion in this market can be so intense, couples are entering into surrogacy
arrangements even when they suspect that the underlying contract is ei
ther illegal or unenforceable. They are crossing state boundaries in search
of both surrogates and sympathetic courts, and they are sometimes even
importing the surrogate directly. Since so little of this behavior is regulated,
opportunities for fraud abound. When fraud occurs - or when a surrogate
refuses to stop smoking, or to abort a deformed fetus, or give up a newborn
child- then the courts inevitably get involved, reviewing contracts that may
or may not be enforceable in light of legislation that frequently does not
exist.
Fundamentally, commercial surrogacy is an issue of political economy.
It involves an economic relationship that sits within a deeply political
calculus, one that goes to the very heart of political economy. What, the
debate over surrogacy asks, can legitimately be sold in a market transac
tion? Who decides? Flow can the state or any authority weigh the desires
of having a child against the dangers of selling one?

BACKGROUND: THE ANCIENT ART OF SURROGACY

As a substitute means for producing children, surrogacy is an ancient prac
tice. Women across the globe have long used others to bear the children
they could not conceive, relying on a combination of tradition, coercion,
and affection to create the desired result.
Sometimes, infertile women simply adopted at birth the 'surplus' chil
dren of a neighbor or friend. Where resources were scarce and contra
ception limited, it simply made economic sense for children, like grain
or military service, to be distributed more evenly across a small commu
nity. In Vietnam and Greece until quite recently, for example, women who
bore large numbers of children frequently gave their later-born to those un
able to conceive (Moon, 1994; Shapera, 1946). In colonial America, mothers
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 SPAR: FOR LOVE AND MONEY

often 'put out' their younger children, placing them with smaller or child
less families where they would learn a trade or provide an extra set of
working hands (Marsh and Ronner, 1996). Such transactions occurred well
beyond the market and neither woman - the birth mother or the adoptive
mother- was compensated for her services.
Elsewhere, surrogacy assumed a more intimate connection, one more
akin to today's version of the process. Infertile women chose surrogates,
often their maids, to bear children for them. History records these transac
tions most vividly in the book of Genesis, where Rachel, the wife of Jacob,
commands her husband to consort with her maid. 'Behold my maid, Bil
hah,' she cries, '[G]o in unto her, and that she may bear upon my knees, and
I also obtain children by her.' Abraham's wife, Sarah, likewise relies on her
maid Hagar to conceive Ishmael. In Biblical surrogacy, therefore, as in most
modern surrogacy relations, the child was genetically related to the father
that would raise him. The biological mother, by contrast, was neither a pure
volunteer nor a paid provider. She was a servant in most cases, or some
times a second wife or concubine of the father. As Pamela Laufer-Ukleles
points out, therefore, the surrogate mother in these situations was essen
tially more of a surrogate wife (Laufer-Ukeles, 2003). Frequently, she was
acknowledged as the mother of her biological children, who were simply
raised in the household of another woman.
Another form of surrogacy arose in the Middle Ages, when wealthy
women regularly turned their newborns over to wet nurses, nursing moth
ers who, for a fee, would assume the care and feeding of an additional child.
Typically, the child would live with the wet nurse during the first year of
life, with the natural mother making only occasional visits (Golden, 2001;
Giladi, 1999; Sussman, 1982; Fildes, 1988). As is the case in modern surro
gacy, the wet nurse had no long-term involvement with the child; she was
simply employed for a specific task and paid a non-trivial fee. As with sur
rogates as well, medieval wet nurses tended to be poorer than the mothers
they served and to have their own biological children.
Over time, of course, preferences changed. Shifting mores reified the
notion of motherhood across the industrializing world, creating what his
torian Carl Degler has referred to as a 'cult of domesticity' (Degler, 1980,
pp. 26-51). Wet nurses went the way of concubines, as Western couples
settled into stable patterns of monogamous, multi-child households and
adhered to religious beliefs that sanctified child bearing only in the context
of marriage. Children born out of wedlock were frowned upon, as was any
form of physical contraception (Riddle, 1992; Tone, 2001). Infertile couples
were simply consigned to their fate, assuaged only by a frequently voiced
belief that this was God's will.1
This situation prevailed until the final decades of the twentieth century,
when a series of technological developments re-created the option of arms
length conception.
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY
BABYMAKERS: THE BIRTH OF COMMERCIAL
SURROGACY
At its core, surrogacy is a low-tech operation. All it entails, as the Biblical
wives understood, is a woman willing (or coerced) to have sex with another
woman's husband and then willing (or coerced) to let this other woman
raise her child. In purely practical terms, the only problem stems from a
lack of willingness in the absence of coercion. Given that pregnancy and
childbirth impose significant costs and sometimes even physical danger,
why would a woman undertake the risks of conception without the benefits
of a child? In Biblical times, the incentive was coercion: Bilhah was Rachel's
maid, after all, and presumably had no choice. In other cases, altruism may
provide sufficient reward, with friends or sisters producing offspring for
those who cannot. However, generally, we should expect to find market
failure in the area of surrogacy. For without either incentive or coercion,
the supply of surrogate mothers will never equal their demand.
Theoretically, at least, the missing piece of this puzzle is money. If women
could be paid to serve as surrogates, then financial compensation could
presumably replace coercion as a workable incentive. Market failure could
be surmounted by using the basic lever of commerce - money - to in
crease the supply of potential surrogates. Surrogacy could become a fee
for-domestic-service arrangement, much like infant care or housecleaning.
Historically, though, the intimate nature of surrogacy's task has rendered
such arrangements impractical. Few women wanted to be paid for what
was essentially sex plus pregnancy and a baby. Few men (or their wives)
wanted to contract for such services. Thus, not even money could create a
market for surrogacy - despite considerable demand.
In the latter decades of the twentieth century, though, surrogacy under
went a significant revival. Part of the impetus for this resurrection came
from technology; part from commercial enterprise; and part from shifting
moral norms. Together they created a vibrant, albeit controversial, market
for motherhood.
The first piece of this market was artificial insemination (AI), a procedure
that was perfected in the 1980s and driven largely by demands stemming
from male infertility. Like surrogacy, AI is essentially a very simple opera
tion. A man produces sperm in a laboratory setting; the sperm is captured
and preserved; and then the sperm, without the man, is inserted into the
prospective mother. Initially, this treatment was used almost exclusively
as a non-market solution, a way for couples to conceive when the husband
suffered from some physical condition that impeded insemination. Before
long, however, observers of the field began to recognize an additional de
mand, one that transcended both the marital link and the normal bounds
of markets. Many women, it appeared, were eager to obtain sperm that
did not necessarily come from their husbands. Some of these women had

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 SPAR: FOR LOVE AND MONEY

husbands with genetic diseases; others had husbands who could not pro
duce sperm; still others had no husband but a desire to produce children
nevertheless. In each of these cases, AI solved a problem and created a
market.
The commercial piece started slowly, as reproductive clinics edged into
the business of intermediation. Initially, the clinics used sperm only from
their patients' husbands. Then they took donations from friends or fam
ily, and then they realized that a more impersonal system could actually
enhance both the quantity and quality of the sperm supply. By moving
toward the market - soliciting donors and paying them a nominal fee - the
clinics could reduce their dependence on a patient's circle of friends and
impose a more anonymous form of quality control. Using donated sperm,
women (and their husbands) would not actually have to choose a man to
father their child. They only had to choose his sperm. By 1980, there were
17 frozen sperm banks across the United States, offering more than 100,000
samples for sale (Fleming, 1980, p. 14).
For surrogacy, the implications of AI were profound. In the past, the only
way for surrogate mothers to produce children was to engage physically in
sexual relations with the prospective father - a messy business under any
circumstances and one that held little appeal for the wives of the husbands
involved. With AI, however, conception was removed from sex, making it
possible for a man to impregnate a surrogate without even meeting her.
This physical distancing made surrogacy a considerably more attractive
option. Combined with ever-increasing sperm banks, it also made surro
gacy more feasible, allowing infertile couples to procure both sperm and
eggs from outside, unrelated sources. In economic terms, then, the emer
gence of commercial AI enhanced both the demand for and supply of
surrogate mothers (Hewitson, 1997). Once demand and supply were in
place, the market followed readily.
One of the first to recognize the commercial potential for surrogacy was
Noel Keane, a Michigan attorney who noticed in 1976 that more and more
of his clients were intrigued by the reproductive potential of AI. Having de
spaired of conceiving children by other means, these couples began to ask
Keane to find them surrogates, women who would be willing to undergo
AI and then give the child to his or her biological father. Keane agreed to
assume this broker role and placed advertisements in Michigan papers,
offering prospective mothers a fee for the service of surrogacy. With this
act, he effectively launched a market, searching for a supply (of mothers)
to meet the demand that was already apparent in his office.
Just as his business was launching, though, Keane encountered a fun
damental problem: under Michigan law, the sale of babies was illegal.
Practically, this meant that commercial surrogacy was also illegal, since
the non-birth mother in a surrogacy arrangement was never biologically
related to her intended child. Instead, even when the child was the genetic
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

offspring of her husband, the mother-to-be was still an adoptive mother -

precisely the kind of mother who was expressly prohibited from buying
a baby. Realizing that the law would inevitably criminalize the surrogacy
services he had been arranging, Keane quickly tried to move towards a
more altruistic model. Convinced that surrogacy itself was not illegal in
Michigan, he eliminated the payment piece, offering potential surrogates
the chance to give the gift of life without any financial compensation. How
ever, altruism, it appears, was far less attractive than cash. The supply of
surrogates, 'dried up as quickly as they had sprung,' Keane later noted,
leaving him with a business model now shorn of its business (Keane, 1981).
Over time, Keane managed to restructure his offerings. He fought a
legal battle in Michigan, and then decamped for jurisdictional purposes
to Florida, where a more lenient state law neither prohibited payment to
surrogates nor required that the child in question be born in Florida. He
was also joined by a small but defiant band of competitors, each striving
to carve a commercial niche in the still-murky field of surrogacy.
Bill Handel, for example, a high-profile lawyer in Beverly Hills, built a
successful surrogacy practice based on the notion of psychological com
patibility. Working with a female psychologist, Handel wrote contracts
that he presumed were legally unenforceable, relying instead on the sur
rogate not to change her mind (Hanley, 1988). In Kentucky, Dr Richard
Levin used his state's relatively lenient adoption laws to launch a heavily
publicized commercial surrogacy practice as early as 1979. With a license
plate reading 'Baby 4 U,' Dr Levin made no secret of his commercial intent,
publicly announcing that he would pay appropriate surrogates several
thousand dollars for their services. He then made the rounds of local and
national talk shows, often with his surrogates in tow, presenting them
as 'modern-day Florence Nightingales, ministering to the needs of infer
tile couples' (Andrews, 1989, pp. 86-7). Customarily, brokers like Levin
charged around $15,000 for their intermediation, bringing the total cost of
surrogacy to somewhere between $20,000 and $45,000 (Krucoff, 1983, C5).
By the early 1980s, this group of brokers had produced a handful of
high-profile babies: 100 by 1983; roughly 500 by 1987 (Krucoff, 1983, C5;
Krauthammer, 1987, pp. 17-9). Baby M was among this initial group, as
were several other hotly contested infants. Observers at the time gener
ally cautioned that the baby business had gone way too far, and that in
termediaries like Keane and Levin were essentially commodifying both
women and children (Anderson, 1990; Corea, 1985; Rothman, 1989). Pro
ponents, by contrast, framed their arguments either in terms of parental
desperation (those who turned to surrogacy had no other means of pro
ducing a biological child) or the freedom to contract (if individuals were
allowed to procreate and to contract, then surely they should be able to
procreate under contract). These debates played out in both academic and
public forums, pitting market advocates against the defenders of women's
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 SPAR: FOR LOVE AND MONEY

rights. Interestingly, most feminists aligned with traditional conservatives

on this issue, arguing that women's rights did not include the right to sell
one's procreative services (Anderson, 1990; Overall, 1987; Warnock, 1985;
Field, 1990; Corea, 1985). Some went even further, defining all surrogacy
arrangements as essentially exploitative, since they rested on women's con
formity with existing gender stereotypes (Roach Anleu, 1990; 1992; Ray
mond, 1990). More liberal or libertarian feminists, however, sided with the
more radical free marketers, insisting that freedom for women included
the freedom to contract for labor (Posner, 1992; Posner and Landes, 1978;
Shalev, 1989; Sly, 1982; 1983).
For several years, these debates raged within the academic community
and across public media. They incited a fierce split within the feminist
community and created completely new areas for legal inquiry and schol
arship. Yet the surrogacy market itself remained exceedingly small: only
about thirty commercial surrogacy agencies as of 1988, making about 100
matches a year (Office of Technology Assessment, 1988, pp. 267-70). In
economic terms, this stunted commerce made sense. For there was still far
too much uncertainty in the market, far too little agreement about just what
was being sold, and under whose rules. Were surrogates selling their labor
or their bodies? Were couples buying a service or a child? Without clear leg
islation on these issues, contentious surrogacy cases were destined to wind
up in the courts, where judges were similarly likely to hand down very dis
parate decisions. Some women - out of altruism, guilt, or pure desire - were
willing to contract under such uncertainty, entering into arrangements that
remained effectively unenforceable. However, they were rare; the fodder
for talk shows, perhaps, but not the makings of a market.
As the debates over surrogacy continued to rage, however, scientific
developments were already rendering them largely moot, because by the
mid-1980s, new technologies for conception had supplanted the traditional
model of surrogacy, creating a substitute with far greater commercial po
tential. This substitute, of course, was gestational surrogacy, and by split
ting the baby making process into three fully separate components, it rev
olutionized the business.

THE PROMISE OF IVF

The spark for this revolution came from in-vitro fertilization (IVF), the
technological breakthrough that allowed babies to be conceived outside the
womb. Made famous in 1978 with the birth of Louise Brown, the world's
first 'test-tube baby/ IVF was the result, once again, of a decades' long
quest to combat infertility. Like 40 percent of infertile women, Mrs Brown
suffered from a blockage in her fallopian tubes. She could produce eggs and
carry a child, but she could not produce that child in her own womb. What
the Browns' doctors did, therefore, was to take an egg from Mrs Brown's
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

ovaries, fertilize it with Mr Brown's sperm, and then re-implant the eight
cell embryo back into Mrs Brown's uterus. The infamous test-tube (a petri
dish, actually) was but a tiny part of conception, providing the out-of-body
environment in which fertilization could occur.
Initially, IVF was used almost exclusively within the bonds of marriage.
Couples like the Browns scrambled to an emerging cadre of IVF clinics,
while doctors - particularly in the United States, UK, and Australia -
rushed to perfect the techniques that had produced Louise Brown. Gov
ernment bodies in all three countries analyzed the medical breakthrough
with some suspicion, but eventually approved IVF, with some restrictions,
for the treatment of infertility (Ethics Advisory Board, 1979; Department
of Health and Social Security, 1984; Committee to Consider the Social, Eth
ical and Legal Issues Arising from In Vitro Fertilization, 1982). By 1985,
IVF was a commonly employed practice and a quietly thriving industry.
In the United States alone, roughly 70 clinics offered in vitro fertilization
procedures, drawing from a clientele with overwhelmingly similar char
acteristics: they were young, married, and suffered simply from defective
fallopian tubes (Singer and Wells, 1984).
By this point, however, the implications for surrogacy were simply too
tempting to ignore. Technically, the beauty of IVF was that it allowed some
infertile women to by-pass the physical blockage that prevented pregnancy.
Commercially, however, it allowed surrogacy arrangements to circumvent
their own blockage - the legal and moral blockage that had traditionally
bound wombs and eggs. Under traditional surrogacy arrangements, after
all, the surrogate mother was also the genetic mother of the child she bore.
Like Rachel's maid, the surrogate was in fact giving 'her' child over to
another woman, one with no biological links to the child in question. This
central asymmetry made surrogacy a legal morass, since the surrogate
undeniably had a greater claim on the child than the intended mother
did. Indeed, in nearly all of the contested surrogacy cases, the surrogate
mother won back the rights to 'her' child, qualified only by the compet
ing rights of the contracting father, who had an equal biological claim.
The contracting mother, by contrast, had only a contractual right to the
child, a right that both society and the courts found increasingly difficult to
uphold.2
The attraction of IVF in this context was its potential to split the genetic
mother from the surrogate mother; to impregnate the surrogate with an
other woman's eggs and enable her to give birth to a genetically unrelated
child. Under this mix-and-match arrangement, the bond between surro
gate mother and contracted child would theoretically be weaker than under
traditional surrogacy, since the birth mother's only link would be through
pregnancy. In addition, the contracting family, by contrast, would have a
relatively stronger claim. Commercially, therefore, gestational surrogacy
implied a less contentious social environment and a more diverse source
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 SPAR: FOR LOVE AND MONEY

of supply. When parents contracted for a traditional surrogacy arrange

ment, after all, they essentially needed to purchase a single package of
egg-bundled-with-womb. By contrast, if the same parents were to engage
in a gestational contract, they could instead purchase two separate com
ponents: the egg from one source, the womb from another. IVF provided
the technical means of bundling these components into a child.
To be sure, harvesting eggs for this kind of arrangement is a complicated
and occasionally dangerous process. The egg 'donor' must adhere to a rig
orous hormone regime and undergo a surgical procedure that removes
the tiny eggs from her ovaries. Recovery can be painful and the long-term
effects are unknown. Nevertheless, once IVF raised commercial interest in
eggs, donors clambered to produce. Initially, most of the clinics involved
in this practice followed the well-trodden path of all assisted reproduction.
They quietly advertised for women who wanted to 'donate,' not sell, their
eggs; women who wanted to assist another woman and help create a life.
They also, however, offered to pay around $2500 to cover 'time and incon
venience,' a sum that hovered carefully between the short-term sacrifice of
sperm donation and the much longer-term commitment of pregnancy. Pre
sumably, some of these donors were genuinely interested in the emotional
or altruistic elements of egg donation, but at $2500 for three weeks' work,
the financial attractions were also quite prominent. By the late 1990s, stories
of egg sales were flooding the popular press, telling tales of hard-pressed
women 'donating' their genes to pay their bills. As the stories spread, so too
did the interest. In 1995, for example, the assisted reproduction program
at New York's Columbia-Presbyterian Medical Center had five egg donors
on file. By 1998, the program's director reported that he was receiving 50
to 100 calls a week from potential donors, and now had 500 donors on file
(McKinley, 1988, p. 14-1).
In purely economic terms, the influx of eggs should have created down
ward pressure on price. Instead, though, the increased supply actually
increased both price and demand: as more women offered to donate their
eggs, more women wanted to buy them. A broader and more impersonal
market arose, complete with differentiation and a wider range of choice.
Before long, women were no longer just purchasing eggs. They were pur
chasing specific eggs, from specific sources, and paying - sometimes ex
travagantly - for their choice. In 1995, the going price for egg donation was
roughly $2500. By 1999, an infamous ad in Ivy League newspapers offered
$50,000 for the right kind of egg (Kolata, 1999, p. A10).
Once again, it was brokers like Noel Keane and Bill Handel who had
taken the lead, expanding beyond 'just' eggs, to specific eggs, eggs that
matched as closely as possible the traits (or desired traits) of the intended
parents. The great appeal of IVF in this context was that the supply of eggs
was no longer limited by the supply of surrogates. Instead, eggs could be
differentiated by type, while surrogates were clustered more crudely by
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

their willingness to carry a pregnancy to term. Once again, the disaggre

gation of components - the ability to mix particular sperm with particular
eggs and implant them in a third-party womb - allowed the market to
flourish. It also seemed to reduce the moral, political, and legal issues that
hounded traditional surrogacy. For once the egg was separated from the
womb, the link between birth mother and child lost its genetic aspect.
Admittedly, many of surrogacy's harshest critics continued to view the
practice with distaste, arguing that the bonds of pregnancy were still
stronger than any contractual link (Rothman, 1989; Annas, 1988; Corea,
1991). Their concerns were shared by some legal scholars (Radin, 1987;
Laufer-Ukeles, 2002) and by legislation in some states (Spain and Canada,
for instance) that explicitly retained the right of motherhood for the woman
who bore the child. In the broader market place, however, the disaggrega
tion of wombs and eggs alleviated the uncertainties that had surrounded
their packaged form. More women were willing to serve as gestational car
riers than as traditional ones; more women were willing to provide eggs
without wombs attached; and more couples were willing to enter into sur
rogacy contracts when they knew that the birthmother would have no
genetic link to the child. As a result, the creation of a market in eggs ac
tually stabilized - legally and commercially - the market for surrogates.
As the price of eggs rose in the late 1990s, the price of surrogate services
remained steady at around $10,000 per pregnancy. Meanwhile, the supply
of surrogates became increasingly diverse, expanding in particular to in
clude women of color, who could now more plausibly bear the primarily
white children of assisted reproduction. By 2000,30 percent of gestational
surrogacy arrangements at the largest US program involved surrogates
and couples from different racial backgrounds (Ragon?, 2000, p. 65).
Admittedly, the use of purely gestational surrogates did not eliminate the
controversy that occasionally still clouded individual cases. In many ways,
in fact, it expanded the economic arguments against surrogacy, since the
expanded pool of surrogates included so many women who were clearly
more disadvantaged than the parents they served. In the case of Johnson vs
Calvert, for example, a surrogate carrying the contracting couple's biologi
cal child filed for custody of the baby, claiming that she had a fundamental
right to the child she had carried (Horsburgh, 1992; Gray son, 1998). As the
surrogate in this case was both poor and black, while the contracting cou
ple was white and were well off, the ensuing legal debate ignited a storm
of related controversy. (The biological mother was actually Filipino, a fact
that was frequently overlooked.) Inherently, some observers argued, gesta
tional surrogacy was no different from traditional surrogacy. It still created
a physical and emotional link between the baby and the birth mother; a
link that simply was not subject to any contractual obligations. Moreover,
insofar as gestational surrogacy made it easier for less-privileged women
to carry babies for the better off, it constituted a particularly egregious form
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 SPAR: FOR LOVE AND MONEY

of exploitation: poor women were selling their bodies - or at least the use
of their bodies - to wealthier individuals (Grayson, 1998). The market, in
other words, was forcing women into surrogacy; causing them to do that
which they otherwise would not choose (Oliver, 1989, p. 97; Dworkin, 1983,
p. 182).
Such opposition, however, did not impress the courts in this case. In
stead, both the trial court and the California Supreme Court found for the
contracting parents in Johnson vs Colvert. They argued that although both
'mothers' in this case presented proof of maternity, 'she who intended to
procreate the child - that is, she who intended to bring about the birth
of a child that she intended to raise as her own - is the natural mother'
(McEwen, 1999, p. 281). Under California law, therefore, motherhood was
essentially defined as the intent to create a child, regardless of the mother's
physical role in the reproductive process. The surrogate, by contrast, had
a much smaller claim on the child, a non-biological claim that could now
be trumped by the traditional force of contract.
This was the distinction that gestational surrogacy allowed, severing the
biological tie from the maternal. Once this split was achieved, it became
far easier for courts and other observers to find a role again for contracts.

GOING GLOBAL: THE INTERNATIONAL MARKET

FOR REPRODUCTIVE SERVICES
In commercial terms, therefore, gestational surrogacy was a godsend. It
disaggregated the components of conception, creating a bigger and more
profitable market for each. It created considerably more choice for the
consumers of reproductive services and reduced the legal obstacles to
surrogacy contracts. These developments then reinforced each other, as
greater legal predictability enhanced both the supply of and demand for
surrogacy's basic ingredients.
Not surprisingly, disaggregation of the supply side also allowed the
surrogacy market slowly and surreptitiously to go global. Already, most
national markets were pockmarked by inconsistency, the legacy of legisla
tive neglect and widely varying court decisions. In the United States, as
noted above, the market clustered around permissive jurisdictions such
as California and Florida. In Europe, reproductive clinics concentrated in
the UK, where non-commercial surrogacy was explicitly permitted by law
and in Italy, where the law was silent (Ferrando, 1996). Israel also be
came a familiar site for IVF after 1996, when Parliament passed legisla
tion legalizing gestational surrogacy arrangements. Well aware of these
geographical discrepancies, potential parents from restrictive states fre
quently sought surrogacy arrangements in other locales, engaging in the
kind of 'regulatory search' that footloose corporations are often accused
of. As technology made it easier and easier for parents to choose all the
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

components of assisted conception - the eggs, sperm, womb, and the gov
erning jurisdiction - it was but a small and logical leap to international
trade.
One of the first known cases of cross-border surrogacy occurred in 1987,
when Alejandra Mu?oz, a 19-year-old Mexican woman, crossed illegally
into the United States to be impregnated with the sperm of her cousin's
husband. Munoz, who was illiterate, apparently believed that she would
only be carrying the fetus for several weeks, after which time it would be
transferred back to her cousin's womb (McEwen, 1999). More recently (and
less contentiously), several British parents, including gay and single men,
have hired US surrogates to bear babies for them. So too have infertile
Australians (and Taiwanese and Kuwaitis) who were unable legally to
employ surrogates at home. Many of these cases occur in California, where
lenient rules allow the contracting parents to be recognized as such at the
time of their baby's birth (Rogers and Harlow, 2001). The total cost of such
trans-oceanic packages is roughly $75,000.
Meanwhile, the components of surrogacy are also traded across bor
ders. Sperm, for example, is a global commodity, with exports of roughly
$50 million to $100 million each year (Zachary, 2000, Bl; Spar, 2004). Eggs
have also recently gone global and surrogates are following closely be
hind, bearing babies with a distinctively cross-national pedigree. In one
recent case, a Japanese woman arranged for her husband's sperm to be
airlifted to the United States, where it was blended with an egg from a
Chinese-American student and then implanted into a Caucasian surrogate
(McEwen, 1999, pp. 286-7). In another, Polish newspapers solicited women
to serve as surrogates for couples in Holland, Belgium and Germany.
The fee was roughly equivalent to two years' average salary in Poland
(McEwen, 1999, p. 287; Corea, 1985, pp. 214-5,245). Similar arrangements
are also cropping up across the Internet, a medium that helps to erase the
information asymmetries so prevalent in surrogacy. On online sites such
as EverythingSurrogacy.com potential surrogates list their availability and
fees, while prospective parents detail their needs and the arrangements
they are willing to make. Other sites, like russiansurrogacy.com specialize
in international transactions; this one offers surrogates from Moscow and
St Petersburg, home, the site announces, to the world's 'most favorable'
surrogacy laws.
If we abstract from the product at hand here, the underlying business
model is eminently reasonable. There is a good - babies - with a strongly
inelastic demand curve. No price is too high for many waiting parents
to pay, and many of these parents have considerable resources at their
disposal (Blank, 1990, p. 15; Hewlitt, 2002). Supply, however, is inherently
more limited, since most women do not want to sell their eggs or lease their
wombs. Moreover, many of the women who will lease their wombs are do
ing so, the record indicates, because they do not have many commercial
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 SPAR: FOR LOVE AND MONEY

alternatives. Already, surrogates in the United States (the most developed

market in this case) are distinctly less wealthy than contracting parents
(Office of Technology Assessment, 1988; Ragon?, 1994; Parker, 1983). They
are becoming less white than these parents are and arguably have fewer
claims over the children they produce. As the market expands to 'source'
surrogates from Poland or India or Mexico, this discrepancy is almost cer
tain to widen, adding to the vast gulf that already divides rich nations from
poor. Thus, there is a basic imbalance in the market and an ever-present
risk (some would say guarantee) of exploitation.
This imbalance is then further compounded by the thicket of conflicting
rules that confront surrogacy - a gamut of laws, norms, legal decisions and
religious beliefs that vary across the international arena. Sometimes these
rules actually criminalize surrogacy and push it underground. Sometimes
they just constrain the surrogacy business and increase commercial uncer
tainty. In either case, the effect is to make an already-imperfect market even
more so.

Ironically, however, this very combination of constraints mak

national surrogacy particularly attractive. For the more restrictio
are in any single country, the greater the temptations to outsourc
Imagine, for example, a couple living in Munich, desperate for a c
unable to conceive. Under German law, surrogacy is not an optio
der US law, it is. Without too much trouble or legal risk, this coup
to Los Angeles, purchase eggs (or sperm) from a donor there, and t
the resulting embryo implanted in a Mexican surrogate. One count
can govern the medical procedures; one the commercial transacti
one the adoptive process that will eventually give the child to its
parents. In a crude sort of way, the process bears a striking rese
to the regulatory and tax arbitrage practiced by multinational fir
firms, parents can pick their jurisdiction of choice, avoiding restr
reproductive services by physically circumventing them.
Such cases have already occurred. Two gay British men, for exa
used an American surrogate to give birth to 'their' twins after Bri
tion agencies refused to consider them. Another Briton, an unmar
erosexual man, paid $50,000 for an American surrogate to carry h
sons. Although the man could conceivably have conducted his tra
at home, he preferred the more liberal regulations that prevaile
United States. More dramatically, the Infertility Center of Amer
in Indianapolis, Indiana, estimated in 1995 that it had already arra
surrogates to assist over 500 non-American clients (Krim, 1996,
all of these cases, the parents essentially engaged in internationa
they purchased components abroad, created the product in an ef
offshore locale, and then imported it back home.
As international surrogacy becomes more prevalent, a wider
wombs is almost certain to emerge (Leibowitz-Dori, 1997; Krim
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

Already, gestational surrogates have become the commodity end (along

with sperm) of the reproductive market. The price for surrogacy is essen
tially flat, and traits of the surrogate (aside from compliance) are increas
ingly irrelevant to the conception process. Economically, there is no reason
why poor Asian women should not carry children for rich western cou
ples, why young, impoverished Africans should not be in the business of
bearing babies. Today, these women populate the lower ranks of the in
ternational labor market: they sew shirts in Cambodia; assemble sneakers
in China; and eke out a living making handicrafts in Mexico. Purely on
economic grounds, there is no reason why these same women could not
instead provide the labor of birth. If they could provide perfect substitutes
for higher-priced surrogates in the industrialized states, then the financial
attractions of cross-border trade would be obvious. Surrogacy could be
outsourced to the lower-cost states, providing (rich, infertile) women with
babies and (poor, fertile) ones with some means of livelihood.
Obviously, any trade along these lines would be intensely controversial.
It would explicitly involve the exchange of reproductive services, com
ing perilously close to the commodification of both women and children
(Radin, 1987; Rothman, 1986). It would be based explicitly on a fundamen
tal economic disparity, employing women whose advantage in the inter
national marketplace is essentially non-existent. Theoretically, at least, it
would serve only to perpetuate this division, condemning women from the
developing nations to act as servants - some would say prostitutes - for the
rich (Raymond, 1995; Oliver, 1989; Corea, 1985; Wolliver, 2002; Dworkin,
1983). Even if these women had chosen surrogacy over other alternatives; if
they had decided on their own that carrying a stranger's child was prefer
able to sewing shirts or stitching sneakers, one could still argue that their
choice was skewed by the inequities of the global trading system. Is it free
choice, after all, if a mother of three becomes a surrogate in order to feed
her children? When she signs the formal contract, is this woman exercising
free will or providing evidence of the desperation caused by inequality?
Most critics of surrogacy would insist strongly on the latter. Or, as Oliver
writes, 'in the case of surrogacy, freedom is an illusion' (Oliver, 1989, p. 99).
Such arguments clearly carry weight. Cross-border surrogacy would in
evitably thrive on the vast economic disparities that characterize the global
trading system. It would allow poor women to sell their reproductive ser
vices and would channel the bulk of profits to (mostly male, mostly west
ern) brokers. Renting wombs, regardless of what we call it, would yank
into the market a set of activities that we might prefer to retain in the truly
private sector. Yet, as noted above, an international market in surrogacy is
already well underway. It is recognized as legitimate in at least a handful
of jurisdictions and it produces a good - children - that few would define
as inherently undesirable. To be sure, the mere existence of this trade does
not confer legitimacy. Many activities - murder, theft, piracy - have existed
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 SPAR: FOR LOVE AND MONEY

for centuries without ever being sanctified by either law or morals. What
differentiates surrogacy is the intent and effect of its practice. When people
engage in murder, they intend to do harm. When they steal, they intend
to deny property from its rightful owner. There may well be specific in
stances where either theft or murder are justified in some utilitarian sense,
but societies have decided, again and again, that the possible good effect
of a particular murder is overwhelmed by the almost certainly evil effects
of murder in general. A Kantian framework reaches this same conclusion
even more efficiently. But producing children? The intent in this area is
almost certainly good, or at least very difficult to define as inherently evil.
Effect, to be sure, is tougher. One can argue that the effect of surrogacy
is to demean women who become professional bearers. Indeed, this line
of argument dominates the reasoning of many feminist and Marxist oppo
nents of the practice (Corea, 1985; Overall, 1987; Oliver, 1989). These are
arguments, though, rather than accepted facts. Does paying for pregnancy
demean women? Do surrogate mothers lose dignity in some generalized
way that they themselves cannot even identify? We just do not know. Yes, a
handful of surrogates have later fought for custody of the children they car
ried. Some have subsequently regretted their experience and rallied against
the practice, but in the vast majority of cases, the surrogates appear either
pleased with their contribution, or emotionally unaffected (Andrews, 1995;
Ragon?, 1994, pp. 51-86; Schmukler and Aigen, 1994, p. 244). It is difficult
to demonstrate empirically, therefore, any inevitably ill effects. Similarly,
while one can argue that any imposition of the marketplace into the realm
of reproduction is inherently wrong; that, in the words of Michael Sandel,
'treating children as commodities degrades them as instruments of profit
rather than cherishing them as persons worthy of love and care' (Sandel,
1997, p. 25), this is again an assertion rather than a fact. How do we know
that expensively procured children are any less cherished than those cre
ated for free? If the children of surrogacy do not feel degraded, then by
what right can we claim degradation on their behalf? Once more, the logic
of the argument does not necessarily generate hard, empirical answers.
A similar dynamic surrounds the international effects of surrogacy, ar
guably the most complicated to unwind. Yes, the potential for exploitation
is undeniably heightened by the prospect for international surrogacy. Al
most certainly, the women who act as surrogates will be disadvantaged
relative to the parents they serve; they will be poorer, less educated, and
based in those parts of the world where economic options are substan
tially constrained. Unless one posits, however, that the existence of global
inequality renders all economic choices moot; and until there is any path
by which these inequalities can feasibly be addressed, denying women this
particular choice seems oddly counter-productive. It also does not square
with the kind of logic applied to other areas of the global labor market.
When we worry about working conditions and low wages in the offshore
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

garment industry, for example, we typically suggest policies such as higher

minimum wages or an extension of international labor standards. We try
to address child labor by agreeing to regulatory norms; and environmental
arbitrage by encouraging adherence to standards such as ISO 9000. In each
of these cases, concerns about global inequality lead toward international
rules or regulations, not a total prohibition of the activity involved.
Theoretically, at least, similar kinds of regulatory standards could also
order and constrain the surrogacy trade. If we do not understand the full
effects of cross-border surrogacy then, yes, as a society we can choose to
ban it entirely. However, we can also choose to regulate it carefully; to use
the powers of the state to squelch the possible ill effects. In other areas
of international commerce, governments generally perform three related
functions: they supply and enforce property rights, enforce contracts, and
create regulatory structures that impose social constraints on business prac
tice. To take a trivial example, when a Canadian restaurant imports a bottle
of French wine, the transaction is facilitated - unobtrusively, but power
fully - by a web of formal governance. Both Canada and France have well
established legal systems that share common norms regarding property:
the wine belongs to the French vintner, who is able, under both systems, to
sell his or her property to the Canadian restaurateur. The contract between
the two parties - even if it is but a simple order form - is bolstered by legal
convention on both sides. The transaction is duly recorded by customs offi
cials at both ends, and Canada has a rather strenuous list of rules regarding
the ultimate use of that wine: it cannot be sold to minors, for example, or
by a non-licensed caf?.
Now consider, by contrast, a surrogacy arrangement in which a
Canadian couple employs a California clinic to secure donor eggs and
a non-related surrogate. In this case, the governments' role is either non
existent or contradictory. The egg donor has no formal legal rights to trans
act in her eggs. The contracting parents have a contractual right to the 'in
tended' child, but not necessarily to either the eggs or the embryo. This
contractual right, moreover, is accepted in California, but not in Canada,
where the parents reside. If something goes wrong with either the arrange
ment or the pregnancy, there is very little law for any of the parties to rely
upon. Finally, there are no regulations, in either Canada or California, re
garding the specific content of this transaction. Theoretically, the intended
parents could be 39 or 79 years old. They could be model citizens or con
victed criminals; disease-ridden or completely capable of producing a bio
logical child on their own. In Canada, commercial surrogacy is prohibited;
in California, it is permitted, but neither jurisdiction provides anything
close to a comprehensive regulatory framework.
One could argue that this regulatory gap reflects the abhorrent nature
of the practice at hand. If states do not govern surrogacy arrangements, it
is because they have chosen to outlaw them, because surrogacy is deemed
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 SPAR: FOR LOVE AND MONEY

either immoral, or non-commercial, or both. Yet if we relax these constraints

even minimally, asserting instead that surrogacy could be immoral under
some circumstances, or that it should be a non-commercial activity, then
regulation would logically appear a preferable alternative to prohibition.
Rather than banning surrogacy (which would likely serve only to drive
the practice abroad or underground) states could regulate it, using tra
ditional channels of authority to control the market or blunt its roughest
edges.
Such intervention is already accepted practice in other complex and inti
mate relationships, including marriage, medical research, and organ trans
plants. All of these activities exist in what, following Radin, we might label
a state of 'incomplete commodification' (Radin, 1987, p. 23). They involve
attributes - a bride, a kidney, a child - which we might not want to corn
modify, yet which nevertheless exists in a market economy. Transplant
doctors, for example, are paid (quite handsomely) for their services, and
licensed by the states in which they practice. A similar web of regulation
surrounds adoption, an activity that, in outcome at least, sharply resem
bles surrogacy. Is it inconceivable that states could create the same kind
of regulatory structure to govern surrogacy as they have already done for
adoption? Adoption, after all, raises the same core concern as surrogacy:
the fear that women will sell their children, commodifying in the process
mothers, children, and even love. Yet adoption has been embedded in a
relatively non-contentious regulatory process that extends, via the 1993
Hague Convention, across the global arena. Extending the Hague princi
ples would not involve a massive conceptual leap.

FROM CONTRACEPTION TO CONCEPTION:

CONCLUDING THOUGHTS ON A POSSIBLE MODEL
In 1938, an influential article in Fortune magazine took on the topic of
contraception. This was a very big deal at the time, since contraception
was still illegal in many US states and sharply restricted in nearly all.
Noting that the contraceptive industry was indeed a large and prosperous
business, the article argued that the lack of regulation in this field was both
hypocritical and dangerous: rich people had access to birth control, poor
people were denied, and consumers had no way of differentiating between
effective and ineffective products (Anonymous, 1938, p. 83).
While taking no stand on the religious and moral issues that suffused
any discussion of birth control at the time, the article described a birth
control industry that was already flourishing. 'The fact is that, whether
wanted or not, birth control by artificial devices exists; that tens of millions
of US citizens practice it... ; that a great deal of money is made out of
it; and that where that money is made improperly, a great deal of harm is
done' (Anonymous, 1938, p. 84). The author then suggests that '[w]hat birth
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 REVIEW OF INTERNATIONAL POLITICAL ECONOMY

control needs is preeminently legislation, for the spread between reality

and the present national law is wide to the point of absurd' (Anonymous,
1939, p. 114).
If one substitutes 'surrogacy' into the above sentence, a strikingly similar
argument can be made. In 1938, contraception was viewed as notoriously,
as repugnantly, as many critics today view surrogate motherhood. It was
seen as an aberration of nature; an ill-fated attempt by humans to interfere
in what God had wrought and to rob women of one of their most pre
cious functions. As with assisted reproduction, however, the demand for
contraception was ultimately too strong to prohibit. As technology made
contraception easier and less expensive, a market emerged to fulfill this
demand. The state fought the market for a long time but then, as the For
tune article admonished, the state realized that this was a market better
suited to regulation than prohibition.
In the field of surrogacy, the demand for regulation is arguably stronger
and more complicated. Because surrogacy arrangements already stretch
across borders, regulation will need to be applied at the international level.
Because several parties may be involved in a surrogacy arrangement, all
will need to be included in any rules that apply. Property rights of some
sort will need to be established, as will contractual guidelines. Safeguards
will need to be erected that ensure that exploitation does not occur in this
trade, and that the disadvantaged women who choose to become surro
gates are provided with the protections they deserve. None of this will be
easy or quick, but the historical record shows that nations, despite their
shortcomings, are actually relatively good at writing the rules that allow
new areas of trade and commerce to proceed. When the telegraph was
invented in the middle of the nineteenth century, observers at the time
predicted that it would either fail dismally or create massive chaos. In
stead, by 1870, both Europe and the United States had created commer
cial and regulatory structures that allowed for an orderly development
of the telegraph industry (Spar, 2001, pp. 84-5). When radio emerged in
the early decades of the twentieth century, it created anarchy in the air
waves and lofty predictions that no one could ever impose order (that
is, property rights) in the sky. Yet only decades later, nations had not
only regulated the airwaves but also neatly divided them between vari
ous states and commercial providers. Birth control, as just mentioned, was
seen for centuries as a repulsive, immoral practice. Today it is a thriving,
well-regulated, and perfectly legitimate industry. Surrogacy is already well
down a similar path. There is a massive demand for surrogacy services and
a growing supply of providers. There are well-heeled intermediaries and a
thriving and disaggregated market for each of the necessary components.
What is lacking is what only states can provide: rules to guide transac
tions, regulation to prevent abuse, and a global framework for cross-border
trade.
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 SPAR: FOR LOVE AND MONEY
NOTES
1 Some of these couples adopted, but in the absence of organized adopt
cies, this was a limited option.
2 In the infamous Baby M case, for example, the court ultimately ruled t
tractual agreement to abandon one's [i.e. the surrogate's] parental righ
not be enforced in our courts.'

REFERENCES
Anderson, E. (1990) 'Is Women's Labor a Commodity?' Philosophy & Public Affairs,
19: 71-92.
Andrews, L. (1989) Between Strangers: Surrogate Mothers, Expectant Fathers, and
Brave New Babies', New York: Harper & Row.
Andrews, L. (1995) 'Beyond Doctrinal Boundaries: A Legal Framework for Surro
gate Motherhood', Virginia Law Review, 81: 2343-75.
Annas, G. (1988) 'Fairy Tales Surrogate Mothers Tell', Law, Medicine & Health Care,
16: 27-33.
Anonymous. (1938) 'The Accident of Birth', Fortune, February.
Baker, D. and Paterson, M. (1995) 'Marketed Sperm: Use and Regulation in the
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