Surrogacy is a form of reproductive assistance in which one woman bears a child for another woman to rear. While it sounds like a simple proposition—something a woman might do for another out of the goodness of her heart—it is far more complex than it initially sounds. Likewise, the ethical, moral, and legal controversies surrounding surrogacy continue to be revealed.
I. Surrogacy: A Brief U.S. History
A. The Case of Baby M
B. The Case of Johnson v. Calvert
C. The Case of Jaycee B.
II. Does Surrogacy Aid Infertile Couples or Exploit Women?
III. Genetics or Gestation: Who Becomes the Legal Mother?
IV. Surrogacy as Deviant to Notions of Motherhood
Surrogacy: A Brief U.S. History
Surrogacy, as scientific assistance for pregnancy and birth, became a part of public discourse around the mid-1970s, despite its having been mentioned in the Bible in Genesis. The first documented instance in the United States comes from an anonymous advertisement in the mid-1970s requesting the help of a surrogate mother. According to the advertisement, the surrogate would receive from $7,000 to $10,000 for her services and $3,000 for medical expenses. The amount established in the 1970s has been the accepted minimum form of assistance for all commercial surrogacy cases. It is important to note that the fees given to surrogate mothers today are not necessarily payments for a child. Most states have made it illegal to pay a woman for a child, so the payments given to a surrogate are couched in phrases like “medical assistance, food, and shelter.” This is done to eliminate the stigma of baby selling.
The first time a surrogacy case went to court was in 1981. Unlike the more widely known cases like Baby M and Johnson v. Calvert, this particular case was about payment. The case was a challenge to Michigan laws that would not allow a payment in exchange for relinquishing parental rights. Leading this case was the so-called father of surrogate motherhood, Noel Keane. He challenged Michigan laws regarding payment to surrogate mothers, but the trial did not go in his favor, and the state upheld its law against fees being paid for a child. In fact, Michigan was so staunchly opposed to surrogacy that it tried to ban surrogacy contracts outright in 1988 and was the first state in the nation to take a stand on surrogacy.
During the 1980s, surrogacy became a more prevalent form of assisted reproductive technology, but it also became more entrenched in legal battles. The law was unable to keep up with the emerging technologies, and before anyone could reconfigure concepts of parenthood, cases like Baby M and Johnson v. Calvert took the national stage. When the Baby M case hit the New Jersey courts in 1986, both the United Kingdom and the United States had had their first successful in vitro fertilizations, and surrogacy had taken on new dimensions. The jargon surrounding surrogacy shifted, creating four categories of cases:
- Traditional surrogacy: a case in which a couple decides to have a child through a surrogate mother, and the husband provides the sperm and the surrogate provides the ovum. In this case, the surrogate mother is the genetic and gestational mother.
- Gestational surrogacy: a case in which a couple decides to have a child through a surrogate, and the husband and wife provide the necessary gametes. In this case, the surrogate is not genetically linked to the child. Also, gestational surrogacy can occur with the use of anonymously donated sperm and ova, thus creating some potentially difficult legal issues (see Jaycee B. v. the Superior Court of Orange County 1996 and In re Marriage of John A.B. and Luanne H.B. 1998).
- Commercial surrogacy: a case in which a couple pursues surrogacy usually through an agency, paying for the agency services as well as providing financial assistance to the surrogate mother.
- Noncommercial surrogacy: a case in which a couple pursues surrogacy, usually through a private agreement, in which no fees are exchanged between the couple and the surrogate mother.
The four types of surrogacy are not mutually exclusive. A surrogacy cannot be traditional and gestational at the same time nor commercial and noncommercial concurrently. However, it can be a traditional, commercial surrogacy or even a traditional, noncommercial surrogacy. Depending on the combination of labels, the moral, ethical, and legal ramifications of each surrogacy case increases. Several legal cases have involved surrogacy, but three have received the most media attention: In re the Matter of Baby M, Johnson v. Calvert, and In re Marriage of John H.B. and Luanne A.B. The three cases have set the precedents for all surrogacy cases and have brought various issues into the national discourse.
The Case of Baby M
When the New Jersey Supreme Court ruled on In re the Matter of Baby M in 1988, the case had received an enormous amount of national attention. The case was the first of its kind, with the surrogate mother demanding that the court acknowledge her parental rights. The case of Baby M was a traditional, commercial surrogacy.
William and Elizabeth Stern, the intended parents, had contracted an agreement with Mary Beth Whitehead as the surrogate mother. According to the contract, Whitehead would undergo artificial insemination with Mr. Stern’s sperm, carry the child to term, and, upon the child’s birth, would relinquish her parental rights to the Sterns. In exchange for fulfilling the contract, Whitehead would receive $10,000.
As the pregnancy advanced, Whitehead had reservations about giving up the child and decided that she wanted to keep it. Upon the birth of Baby M, Whitehead fled to Florida against court orders. When the case went before the Superior Court, the judge upheld the legality of the surrogacy contract and demanded that Whitehead return the child to the Sterns.
Upon appeal, the case went before the New Jersey Supreme Court, where it garnered national media attention. The court, without precedents for surrogacy cases, treated the arrangement between the Sterns and Whitehead as they would a custody battle between divorced parents. Because Elizabeth Stern had no apparent claim to the child, the court did not consider her intent in having a child. The court reversed the Superior Court’s decision on the basis that the contract between the Sterns and Whitehead was illegal. Because the contract outlined payment for a child and the relinquishment of parental rights rather than payment for medical expenses, the contract violated New Jersey public policy and was null and void.
The court, having dismissed the surrogacy contract, then dealt with the issue of custody and the child’s best interests. In the hearing, it was decided that the Sterns could provide the best possible environment for Baby M, so they were awarded custody. Unlike the Sterns, Whitehead had recently divorced and was struggling financially—two things the court considered while deciding the best interests of Baby M. However, because she was deemed the biological mother, the court granted her visitation rights.
Baby M was the first case that addressed the lack of a legal framework for dealing with surrogacy issues. Without laws specifically governing surrogacy, the court had to treat traditional surrogacy as it would a custody battle between separated parties. As a result of the media attention, however, nearly every state considered laws to allow, ban, or regulate surrogacy. The Baby M case marks the beginning of public legal and ethical discussions of surrogacy issues. In the middle of the trial, a 1987 poll from the New York Times found that a majority of people believed that surrogacy contracts should be upheld—even if the courts seemed to rule otherwise.
The Case of Johnson v. Calvert
Six years after the New Jersey Supreme Court handed down its decision regarding traditional surrogacy in the Baby M case, the California Supreme Court handed down a decision that would inform the general consensus toward gestational surrogacy: Johnson v. Calvert. In this case, Mark and Crispina Calvert sought to have a child through a surrogate mother, Anna Johnson.
Anna Johnson offered to be the surrogate mother for the Calverts. Unlike the case of Baby M, where the surrogate also supplied the ovum, Johnson provided the necessary gestation for the child, and Mrs. Calvert provided the ovum. By using in vitro fertilization, Johnson carried the Calverts’ genetic child. Under the contractual agreement between the two parties, Johnson would receive $10,000 in installments to help finance medical expenses and basic needs. The Calverts would also insure her life with a $200,000 life insurance policy. In return, Johnson would carry the child to term and recognize the sole parental rights of the Calverts. However, the Calverts and Johnson had a falling out, and both parties filed custody suits.
According to California law (under the Uniform Parentage Act), both Crispina Calvert and Anna Johnson had equal claims to the child, because the law acknowledged the role of genetic and gestational mothers as legal mothers. However, the court decided in favor of Mrs. Calvert based on a consent-intent definition—a definition that has subsequently affected all gestational surrogacy cases. By a consent-intent argument, the legal parents are the people who consented to the procedure with the intention of taking on parental responsibility. The court argued that any woman could have gestated the resulting child, but only Mrs. Calvert could have provided the ovum. As a result, Mrs. Calvert was the legal mother.
The Case of Jaycee B.
Like the two previous cases, the trials involving Jaycee B. took the national stage, as once again the law struggled to deal with issues that arise from surrogacy. However, unlike Baby M and Johnson v. Calvert, Jaycee B. was not a surrogacy case; in fact, the trials surrounding this child were more about child support and deciding the legal parents. The trials were labeled as a surrogacy case gone awry, because Jaycee B. was the result of a rather unusual surrogacy. This case involved a gestational surrogacy in which the genetic material (the sperm and ovum) used to create the child belonged to neither of the intended parents. The intended parents had used anonymous donor sperm and ova, and, under California law, donors are not acknowledged as legal parents.
When the intended parents of Jaycee B., John and Luanne, divorced one month prior to the birth of the child, questions of parentage arose. When John filed for divorce, he listed no children from the marriage and refused to pay child support for Jaycee B. In the media, reports labeled the child as legally parentless because the genetic parents were anonymous donors and the surrogate mother had filed for custody, only to take her petition back when Luanne assured her that Jaycee would be fine. As the divorce trial continued, John refused to acknowledge the child as his own because he was not the biological father. He argued that, because he was not genetically linked to the child, he should not have to pay child support.
The first trial in the matter of Jaycee B. concluded in 1996, Jaycee B. v. Superior Court of Orange County. The first trial was meant to decide whether John should pay child support. The Appellate Court declared that, because he had signed the surrogacy contract as an intended parent, he owed child support until such time as a court officially labeled him as other than the father of the child. In 1997, the case became more complicated when a higher court decided that John had no support obligations, that the surrogacy contract was unenforceable, and that Luanne would have to officially adopt the child.
The second trial in the matter of Jaycee B. concluded in 1998, In re Marriage of John A.B. and Luanne H.B. This specific trial dealt with the issue of parentage. The court decided that the intended parents of a child of donor gestation are the legal parents. John had argued that, because he had only signed the surrogacy contract and no other legal paperwork, he could not be considered the legal father and thus was not responsible for child support. The 1998 court decision upheld the consent-intent definition of parenthood established by Johnson v. Calvert, even in the absence of complete legal written documentation, but with John’s full awareness of the situation. Regardless of the lack of a genetic link between John and Jaycee, he was, by intent, her father. The trials involving Jaycee B. were not necessarily surrogacy cases—no surrogate mother was protesting her parental rights—but the trials illustrate what can happen when U.S. laws do not account for the special needs of surrogacy cases.
Does Surrogacy Aid Infertile Couples or Exploit Women?
The biggest praise that surrogacy receives is that it enables infertile couples to have children that are genetically linked to at least one parent, if not both. In 1999, a study found that 2 million to 3 million couples were infertile. Infertility data, combined with the fewer numbers of children readily available for adoptions, suggest that fewer couples would ever experience their desired parenthood. Surrogacy, when compared with the costs of legal adoption, may be an economically competitive form of having children.
The process can be expensive, with a surrogacy costing a couple anywhere from $10,000 to $60,000 depending on whether the surrogacy is commercial or noncommercial, traditional or gestational. Average domestic adoption costs are $9,000, and the expense increases with a foreign adoption. Both adoption and surrogacy carry a weighty cost for agency and legal fees. In an adoption, the birth mother is not paid anything to compensate her for her pregnancy and childbirth. However, because the intended parents may pay money to the surrogate mother, many critics view surrogacy as exploitation.
The case of Baby M caused an explosion of moral and ethical debates regarding surrogacy. Because the contract between the Sterns and Whitehead outlined that she would be paid upon the birth of the child and her filing to relinquish her parental rights, the courts viewed this as baby selling. Under contract, Whitehead would receive money for additional medical needs, but the $10,000 from the contract was to be given to her upon the birth of Baby M and not before and not in the case of an abortion. Radical feminist critics lashed out about surrogacy, claiming that the act exploited women and children and that it undermined the basic mother-child bond. The stigma of baby selling continues in the dialogue about surrogacy. Even today, when it is widely recognized that surrogacy contracts cannot outline payment for children or the relinquishing of parental rights, critics argue that labeling the payments as being for medical expenses, food, or clothing is a facade. Women are being paid to have children and give them to the purchaser.
The issue of women being paid for pregnancy and childbirth brings up more controversial topics like exploitation of women and children and the commoditization of human capital. Because surrogacy is such an expensive procedure, the process favors the privileged classes while harming lower-class women; rich couples can exploit lower-class women with the promise of money that they might not otherwise be able to earn. Because lower-class women may need the money, they would be more willing than other women to act as surrogates, and, because the current system under which surrogacy operates has little follow-up for surrogates, critics argue that these women are seen as persons of use rather than persons worthy of respect.
Because a monetary figure is attached to a woman’s body and the resulting child, critics contend that we have created a market for human capital; we are buying and selling people. Studies question the possible negative effects on a surrogate mother, such as the labels that society places on her and the consequences of separating a mother and child. Others wonder at the outcome for a child who learns that she or he is the result of a surrogacy arrangement. Very few studies follow up on these questions.
However, when we discuss surrogacy and exploitation, we must consider the varying definitions of exploitation. Because harm is a subjective feeling, different surrogate mothers may relate different experiences. A first possible definition of exploitive surrogacy is that the intended parents gain while the surrogate mother is harmed. In this case, the intended parents gain from hurting someone else. Because the intended parents have the economic power, they can demand whatever they wish from the surrogate, and, in return, she is left to acquiesce. A second possible definition of exploitative surrogacy is that both the intended parents and the surrogate gain from the experience, but the intended parents gain more. In this case, the intended parents gain a child and the surrogate gains some kind of monetary compensation. However, because society places a high value on a child’s life, but not one that is necessarily monetary, the exchange for a child and $10,000 for expenses is not a fair arrangement. A third possible definition of exploitive surrogacy is that the intended parents gain from an immoral practice. Because surrogacy violates an inherent social norm or religious viewpoint, it has to be exploitative.
The difficulty in assessing accurate data on the exploitative nature of surrogacy is the fact that harm is subjective. Undoubtedly, Whitehead and Johnson might recount similar feelings from their surrogacy experiences, but the unnamed surrogate from the Jaycee B. case might relate a different experience. While they might make the news headlines, in fact less than 1 percent of surrogate mothers change their minds and want to keep the children. Most espouse a more altruistic motive to becoming surrogate mothers. Able to have children, they decided to give a gift to another couple. The Johnson v. Calvert case judges cited that a majority of surrogate mothers made between $15,000 and $30,000 per year in income separate from any possible assistance from the surrogacy. Less than 13 percent made below $15,000 per year.
It has been suggested that the primary motive for women to serve as surrogates is the money that they can earn doing so. Money may not be the driving factor for surrogate mothers that some critics of the practice suggest. Early studies of the practice also found women’s enjoyment of pregnancy, guilt over a past abortion, or giving a child up for adoption as potential motives in addition to financial compensation. Defenders of surrogacy argue that a woman who chooses to be a surrogate mother solely for some kind of payment would actually make less for the time she invested than if she worked at a low-paying job. Because these women choose to be surrogates—a 24-hour, nine-month job for a minimum of $10,000 of assistance—there must be some other motivation. If these women choose to be surrogates, the issue of exploitation seems irrelevant. It does not make sense that a woman would commoditize her body, as critics claim, for $1.54 per hour. This figure is derived from the following information: an average pregnancy lasts 270 days for 24 hours each day, totaling 6,480 hours. If a surrogate mother receives the minimum $10,000 of assistance, she makes $1.54 per hour. If she receives $20,000 in assistance, it comes out to $3.09 per hour.
Of course, to consider raising the minimum accepted assistance given for medical and basic needs might also lead to more women choosing to be surrogate mothers because of the money rather than for more charitable motives. Ultimately, surrogacy cannot exist without surrogate mothers. We have yet to find a means of fertilizing an ovum and sperm and gestating the embryo without a gestational mother. The question is: does surrogacy help more than it hurts?
Genetics or Gestation: Who Becomes the Legal Mother?
Despite the scientific developments with artificial reproductive technologies, the law has not moved fast enough to consider surrogacy cases. The federal government has been unable to provide a general law for surrogacy like the equivalent in the United Kingdom, the Surrogacy Act of 1985. The only time federal legislation for surrogacy was introduced was in 1989 when Representative Thomas A. Luken (D-Ohio) and Representative Robert K. Dornan (R-California) introduced two different bills.
Representative Luken presented the Surrogacy Arrangement Bill, which criminalized commercial surrogacy. Anyone who willingly made commercial arrangements— intended parents, surrogate mothers, and agencies—would be subject to legal action. Representative Dornan introduced the Anti-Surrogate Mother Bill, which criminalized all activities relating to surrogacy. The bill would have also made all current surrogacy contracts—commercial and noncommercial—null and void. No one has been able to create a federal surrogacy law, and, as a result, the laws vary from state to state.
The Baby M case began the legal discussions of surrogacy and prompted debate in law reviews regarding the legal definitions of surrogacy between 1988 and 1990. The New Jersey Supreme Court’s decision to treat Whitehead as the legal mother of Baby M was the first case of its kind to decide that legal motherhood is defined by genetics. Because Mrs. Stern had no role in the creation of Baby M, apart from her intent to be a mother, the court did not consider her in the case until it tried to decide the best interests of the child. With a legal vacuum for dealing with surrogacy, the court had to treat the case as a custody battle and treated the surrogacy contract as an adoption contract. However, within a few years, most states had considered some laws dealing with the issues that originated with Baby M.
By the time Johnson v. Calvert received national attention, California had already begun a legal dialogue for deciding parentage: the Uniform Parentage Act. According to this act, legal mothers could be determined by either genetics or gestation. This posed a problem with Johnson V. Calvert because, according to this definition, both Johnson and Mrs. Calvert had legal claims to the resulting child. The court decided the case based on a consent-intent definition, which claimed that, without the intentions of the Calverts, there would have been no child. The case also solidified the role of genetics in determining legal motherhood. In fact, many people at the time argued that a genetic definition of motherhood would be the best for surrogacy cases. The genetic argument eliminates any potential inconsistencies in surrogacy law, and it is the one contribution to a child that no one else could supply. In the instance that genetics and gestation were bound in the same woman, legal motherhood would be indisputable.
But, again, because surrogacy laws change from state to state, there are no consistent laws for the process. California is the one state that has stayed the most up to date by considering various laws and standards for determining legal motherhood. Currently, there are three different tests for legal motherhood that courts use when deciding cases: intent-based, genetic contribution, and gestation. As previously mentioned, the intent-based definition of legal motherhood originated with Johnson v. Calvert. Because there would be no child without the intent of the intended parents, the intended mother is the legal mother. The genetic contribution test is the most foolproof method for determining legal motherhood, because it is the contribution that only the biological donor parent provides. The gestation test is a common law assumption that the birth mother is the legal mother because she devoted time to gestating the child.
The fact that there are three tests for determining legal motherhood, and that each of these tests contradicts the other in some places, suggests a need for more uniform law regarding surrogacy. However, in considering federal laws that would regulate surrogacy at the state level, legislators would have to decide exactly what defines a parent. With only one law to govern surrogacy, there may not be room to consider the special circumstances that can arise from surrogacy cases that do not begin as surrogacy cases, like the trials involving Jaycee B.
Surrogacy as Deviant to Notions of Motherhood
Today, it is impossible to discuss surrogacy apart from issues that range from artificial insemination and donor egg transplantation, the controversy over same-sex couples, and U.S. concepts of motherhood. When discussing the moral, ethical, and legal questions surrounding surrogacy, most people get more than agitated. For some, surrogacy is immoral based on religious convictions. For others, surrogacy exploits women and children, making people commodities much in the way that the 18th- and 19th-century slave trade made people commodities. And yet for others, surrogacy is one of the only chances that they will ever have to have a child.
Surrogacy has enabled couples who may not have been able to have biological children to finally have children. This includes infertile couples as well as same-sex couples. With the rise of same-sex marriage controversies in the early part of the 21st century, surrogacy can become enmeshed as well. Religious zealots against homosexuality may lump surrogacy, despite its ability to give children to heterosexual couples, into a category of immoral behavior. Because surrogacy can provide children for same-sex partners, and because same-sex relationships are labeled morally wrong by these groups, surrogacy must also be morally wrong.
But if we strip down surrogacy to its basic components—that a woman might decide prior to conception to choose to gestate a child for someone else to raise—then we may find that the notions of U.S. motherhood are compromised. If U.S. culture heralds a natural mother-child bond and maternal instinct, then what does surrogacy challenge about our notions of motherhood? If a woman willingly decides to gestate a baby for another couple, what does that say about the notions that mother knows best?
On the one hand, surrogacy does perpetuate the idea that women should become mothers. By allowing infertile couples to have children in ways other than adoption or fostering, more women can become the mothers that society expects them to become. For most people, the act of gestation alone might make a woman a mother. But what kind of mother is she if she does not keep the child? Is a surrogate mother worse than a woman who gives up a child for adoption if the surrogate mother decides before she is pregnant that she will not keep the child?
Some of the same stigmas and stereotypes of adoption are repeated in surrogacy. Over the last 30 years, there has been considerable research into both adoption and surrogacy but very little into the women who give up the children. Arguably, it is because surrogate mothers are deviant mothers. They do not conform to U.S. concepts of motherhood and so have been left out of mainstream research. Surrogate mothers do not reinforce ideas like the naturalness of mothering and the maternal instinct. Despite the fact that the surrogacy cases that have received the most media attention—Baby M and Johnson v. Calvert—seemed to argue that women do have an instinctual desire to be mothers, fewer than 1 percent of surrogate mothers have ever contested for any parental rights.
Surrogacy, despite increased popularity as a form of assisted reproductive technology, is still on the outskirts of the U.S. legal framework. Apart from California, most state governments do not have laws guaranteeing the security of either the intended parents or the surrogate mother. The U.S. legal system does not make it possible for a child to have two moms and one dad, or even just two dads (excepting California in a decision from 2005 that changed the Uniform Parentage Act). Because of these limitations, the jargon associated with surrogacy cases is divided, allowing for separations between normal motherhood and deviant motherhood. Surrogacy is either traditional or gestational. It can either be commercial or noncommercial. The language of surrogacy reinforces inherent U.S. notions of good mothers, and a surrogate mother does not fit that role.
- Crockin, Susan L., and Howard W. Jones Jr., Legal Conceptions: The Evolving Law and Policy of Assisted Reproductive Technologies. Baltimore: Johns Hopkins University Press, 2010.
- Markens, Susan, Surrogate Motherhood and the Politics of Reproduction. Berkeley: University of California Press, 2007.
- Schweitzer, Arlette, Whatever It Takes. Mandan, ND: Crain Grosinger, 2004.
- Shalev, Carmel, Birth Power: The Case for Surrogacy. New Haven, CT: Yale University Press, 1989.
- Shanley, Mary London, Making Babies, Making Families: What Matters Most in an Age of Reproductive Technologies. Boston: Beacon Press, 2001.