Reproductive Technologies: VI. Contract Pregnancy

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VI. CONTRACT PREGNANCY

Contract pregnancy, often also called surrogate motherhood, consists of a complex set of practices in which women employ their distinctive reproductive powers to give birth to children on the understanding that others will take on the responsibilities and prerogatives involved in the rearing of the children. The controversies surrounding such practices extend even to issues of labeling. Women who provide their ova as well as their abilities to gestate and deliver babies to this enterprise are sometimes referred to as full surrogates, as contrasted with partial surrogates, who gestate and give birth to children conceived in vitro, typically with the gametes of the commissioning man or couple. For reasons of clarity, the phrase genetic-gestational is used in this entry to refer to those women who have agreed to provide both their gametes and their wombs; gestational alone indicates those women whose role is to sustain and deliver a child to whom they are not genetically related. More significantly, some writers have argued that referring to women who have carried a fetus to term and delivered a child as surrogates slights their status as mothers, and prejudices the discussion of disputes concerning parental status between the birthgiver and the commissioning party in favor of the couple or individual who secured the birthgiver's services. For this reason the term contract pregnancy, coined by Laura Purdy, is adopted here, although it should be noted that not all such arrangements are explicitly contractual. The understandings under which women act may well be highly formal arrangements, brokered by intermediaries and involving payment, but they may also be quite informal, with no intermediaries or compensation.

Apart from matters of nomenclature, controversies concerning contract pregnancy have, in practice, revolved around disputes concerning the enforceability of agreements when one (or more) of the parties involved has undergone a change of heart, namely: contract birthgivers who find themselves no longer willing to relinquish custody of the children they have borne, or commissioning parties who have changed their minds about wanting to parent the child born of the arrangement they initiated. In theory, the chief disagreement concerns the conditions that confer parental responsibility—that is, how the elements of gestation, genetics, desire, and intention should be weighed when their customary connections have been purposefully sundered. Other disagreements arise over whether women or children are harmed or wronged by contract pregnancy, whether contract pregnancy involves the commodification of children or of the parent–child relationship, and whether desires on the part of adults to rear children to whom they are in some way biologically related ought to be honored in light of the needs of existing children who lack parents. It has also been suggested that contract pregnancy offers important reproductive options to people who have not previously enjoyed them—women who have undergone hysterectomies and gay men, for example—and that by expanding the ways in which families can grow (and, in principle, the ways in which people can be related to each other), contract pregnancy can add important value to human lives.

Disputes about Motherhood

The incidence of contract pregnancy is not centrally monitored, but empirical studies by Helena Ragone (1994) suggest that most such arrangements prove satisfactory, at least to the adults who are centrally involved. Nevertheless, three prominent court cases exemplify the deeply unsettling controversies that can arise when the strands of motherhood are pulled apart and the affected parties disagree about how to weave them together again. The first two cases discussed below involve a dispute between the commissioning parties and the birthgivers, in a genetic-gestational contract pregnancy and a gestational pregnancy, respectively; the third case involves a disagreement between the man and the woman who constituted the commissioning party.

IN THE MATTER OF BABY M. Contract pregnancy became a matter of public concern as a result of the Baby M case, probably the most notorious of contract pregnancy disputes. A 1985 agreement between Mary Beth Whitehead and David Stern, providing that Whitehead should, for financial considerations, conceive, bear, and then surrender their child to the sole custody of Stern, led to the birth of Melissa Stern. The contract was voided on appeal to the New Jersey Supreme Court in 1988, after a drawn-out dispute between Whitehead and the Sterns that featured Whitehead fleeing with the child from New Jersey to Florida. Whitehead was recognized as the child's legal mother, contracts of the sort in question being found contrary to New Jersey public policy and law. Custody, however, was awarded to Stern and his wife, Elizabeth Stern, on a determination that the "best interests of the child" would thus be served. Whitehead was granted visitation rights.

JOHNSON V. CALVERT. Anna Johnson agreed to be implanted with an embryo created from the gametes of Crispina and Mark Calvert on the understanding that the Calverts would rear the ensuing child. In September 1990, before the birth of the child, Johnson challenged the contract. The Supreme Court of California upheld the lower court's ruling in favor of the Calverts, on the grounds that while both "genetic consanguinity" and giving birth are legally recognized means of establishing a mother–child relationship, "when the two means do not coincide in one woman, 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 under California law." Johnson's visitation rights were terminated.

IN RE MARRIAGE OF BUZZANCA. Luanne and John Buzzanca arranged for an unnamed woman to gestate an embryo donated by third parties and agreed to rear the resulting child. Just prior to the child's birth, John Buzzanca filed for divorce, maintaining that he had no parental responsibilities to Jaycee, the child to be carried to term on his estranged wife's behalf. The trial court, accepting the stipulation that the birthgiver was not Jaycee's mother and reasoning that the Buzzancas' lack of a genetic tie to the child ruled them out as well, concluded that Jaycee "had no lawful parents." The appeals court disagreed, ruling in a 1998 decision that "the intent to parent as expressed in the surrogacy contract" established Luanne and John as Jaycee's legal mother and father, and finding John Buzzanca responsible for her support.

Three Analytical Clusters

These cases illustrate various forms of disputes about who counts as a parent, and in virtue of what considerations. Given the deep significance for many people of biological connections to their children, bioethicists have been quite concerned to resolve these matters, and a variety of approaches have been explored. These approaches may be grouped under three headings, according to whose interests are deemed most crucial. The first cluster centers on the adult parties involved as competent makers of contracts. These analyses address themselves with the features the contracts should have in order to avoid moral and practical problems. The second cluster focuses especially on the position of women in these arrangements, with particular attention to the woman who accepts the commission. These approaches portray women as operating in what is in general a hostile social environment and are skeptical that women's interests will be reliably served or protected by contract pregnancy. The third cluster centers particularly on the claims that the children born of these arrangements should be able to make against their parents, drawing on the notion that children have a moral stake in how the responsibilities of the adults who brought them into being are assigned.

Contracts and Commodification

A clearly argued version of the first model provided in a 1988 article by Bonnie Steinbock, contends that there is no sufficient reason to outlaw contract pregnancy or hold such contracts unenforceable. Steinbock maintains that these arrangements ought to be seen as a prenatal version of adoption. Among the safeguards she proposes is that a birthgiver ought to be allowed an opportunity after giving birth to change her mind about surrendering custody of the child to the commissioning party, just as a new mother is allowed to reconsider whether she will give up her child for adoption.

The most significant challenge to contract pregnancy, as Steinbock sees it—the concern that such practices involve a mother's relinquishing her standing as a parent for money—could be obviated by mandating that any payment be for "risk, sacrifice and discomfort" (Steinbock, p. 49) involved in pregnancy, and hence would be made even if the pregnancy ended in a stillbirth. Should the mother change her mind about giving up her child, she would not, however, be entitled to any remuneration for those sacrifices.

With commodification thus deflected as a criticism of contract pregnancy, none of the other concerns Steinbock surveys—for example, potential emotional damage to the mother or the child as a result of their involvement in these arrangements—strike her as sufficient to justify state action against the practice. While the possibility that some women will undergo a change of heart cannot be dismissed, it would be intolerably paternalistic for the state to refuse to allow women to make contractual agreements they believe to be in their own best interests because of concerns that they were too prone to mistake what those interests are. Nor is there any reason to believe that any distress suffered by children would be so intense as to make it reasonable for them to wish that they had never been born via these arrangements (which, of course, are the only possible arrangements that would have led to the birth of precisely those children).

Steinbock does not explicitly discuss gestational contract pregnancy, so it is not clear whether such cases would be understood along the lines of her prenatal adoption model, nor whether gestational birthgivers who change their minds would be able to retain any claim to parental standing they might have, losing merely the money that had been agreed upon. This suggests one difficulty with an approach to contract pregnancy that attempts to adapt standing models of assigning parental rights and duties, such as adoption, to resolve contractual disputes. It seems unlikely that any account of contract pregnancy that does not explicitly grapple with what it is that makes a woman a mother in the first place (in the sense of conferring parental responsibilities and prerogatives upon her) will be altogether satisfactory.

Nor is it clear just how a contract pregnancy that includes substantial economic transactions can be insulated from the concern that what is bought and sold is the baby, rather than the gestational services. Steinbock insists that payment be made even in cases in which the pregnant woman loses the child, thereby underscoring the claim that the money is not a quid pro quo for the infant. In a 1990 article, however, Elizabeth S. Anderson argues that commercial surrogacy devalues children insofar as it regards maternal connections to children as commodities to be exchanged and trivializes a woman's own evolving perspective on her pregnancy by providing her with fiscal incentives for severing whatever emotional links to the child she may develop. If the argument that any payment is solely for inconvenience and risk were to stand against Anderson's points, it would seem that the payment should be made regardless of whether the birthgiver is willing to relinquish her parental relationship to the child. She has, after all, faced risk and inconvenience to bring into the world a child to whom the contracting party has a parental relation. That such an arrangement would severely diminish the attractiveness of the contract pregnancy in the first place strongly suggests that the payment cannot be regarded as mere compensation for the birthgiver's trouble. The whole point of the arrangement is that the child should be given up at birth, rather than becoming a part of the birthgiver's family. So it seems that the would-be parents are paying for more than the birthgiver's inconvenience and risk. Their incentive for paying rests on the assurance that they will have custody of the born child.

Women, Exploitation, and Altruism

The issue of turning children or parental relationships into commodities is a serious challenge to the moral and legal propriety of contract pregnancy. Janice Raymond, however, points out in a 1990 article that even when money does not change hands—an arrangement she calls "altruistic surrogacy"—coercive forces are present in society in general and in families in particular that can influence women to act against their own better judgment and interests. Her argument thus serves as a significant instance of the second, woman-focused model of analysis. While the point has often been made that women who are potential contract birthgivers are likely to be less socially powerful than the men or couples who seek to reproduce through their agency, Raymond focuses on expectations of feminine—and particularly maternal—altruism that cut across class distinctions and are in her view among the most powerful of the forces that oppress women. While not denying that "women can give freely," Raymond insists on the sociological complexity of "gift giving," arguing in particular that the connections between altruism and femininity can distort individual choice and reinforce unjust patterns of social status. She ties these cautions about altruism to a broader criticism of contract pregnancy. The practice depicts women as "reproductive conduits," "incidental incubator(s) detached from the total fabric of social, affective and moral meanings associated with procreation" (Raymond, p. 11).

Do concerns of this kind constitute reasons to forbid or restrict women's freedom to enter into such contracts as a matter of law? This depends in part on whether women are able to resist coercive or manipulative pressures that may well be more present in altruistic than commercial contexts, and whether altruistic forms of surrogacy can be conceptualized in ways that do not support, and in fact undermine, objectionable connections between women and altruism. By the same token, whether contract birthgivers are mere "reproductive conduits" may hinge on whether contract pregnancy can be absorbed into the social, affective, and moral fabric to which Raymond alludes—perhaps by revaluing brightening and motherhood in ways that are themselves less prone to reinforce women's subordination. While such refiguring of social meanings seem latent possibilities within the practice of contract pregnancy, it is unclear whether or to what extent they are being realized in individual cases. Nevertheless, Elizabeth F. S. Roberts's ethnographic research, published in 1998, suggests that at least some contract birthgivers are indeed engaged in forging their own, new understandings of what it is to bear a child. These understandings may in turn help destabilize traditional understandings of family and motherhood that have been oppressive for women.

Children and Parenthood

Focusing on the moral role of children in contract pregnancy arrangements, James Lindemann Nelson and Hilde Lindemann Nelson have argued that parental responsibilities arise from parents' causal relation to their children. Because parents have brought about their children's existence, and because their children's existence is initially one of vulnerability and dependence, parents are responsible for their children's well-being. If they cannot fulfill their responsibility, they may give up the child for adoption, but they may not deliberately create a situation in which they put it out of their power to look after their children. Their responsibility cannot be relinquished solely as a matter of agreements between adults that are prompted by their own interests. Nelson and Nelson further argue that because biological ties with children are seen as precisely the justification for such practices as contract pregnancy, it is only fair to assume that children too will have an interest in relationships with those to whom they are connected by ties of biology.

As with Steinbock's position, the implications of this position for cases of gestational surrogacy are unclear, and the situation might seem to be even more murky in cases where the commissioning couple are neither the genetic nor the gestational parents, as in Buzzanca. What kind of causal involvement with the child's emergence into the world is sufficient to establish at least a presumptive set of moral responsibilities? Further, the position at least leaves open the question why a person whose causal involvement is sufficient to ground such responsibilities cannot discharge them simply by taking steps to ascertain that the parties to whom she will relinquish her responsibilities are likely to be good parents. Regarding this latter question, a distinction between prediction and performance might be invoked. The acts of another can only be predicted, but one can exercise substantial amounts of control over one's own performance. May one divest oneself of the ability to see to it that the needs of a child for whom one is responsible will reliably be met? What constitutes a good enough reason to relinquish one's moral responsibilities to one's offspring? Setting aside concerns about commodification, concerns about exploitation of women, and concerns about the deep distress occasioned by a change of mind, it remains to be asked whether an altruistically motivated interest in helping others to procreate is sufficient to initiate human reproduction with the intent not to participate in raising the resulting children. Two further questions remain as well: Is it justifiable to ask someone else to put herself at the personal and moral risk involved with contract pregnancy in order to have or expand a family? Is it important that biologically linked children could not otherwise be brought into the family?

Reassembling Motherhood

Insofar as questions of this sort can be answered empirically, there seems reason to believe that contract pregnancy has afforded a way for infertile people longing to have children of their own to meet women who are gratified by the opportunity to help them realize their goal. That this process sometimes backfires rather spectacularly, as in the Baby M, Johnson v. Calvert, and Buzzanca cases, would not seem a decisive reason to regard the process as immoral or so flawed as to outlaw it. The enterprise is attended by moral risks, however, even in the majority of cases in which everyone walks away feeling satisfied. Giving birth by contract cuts the connections among the genetic, gestational, and intentional elements that constitute motherhood, yet there is no settled, reflective consensus regarding what kind of comparative priority such elements should have when they are sundered. The popularity of such contracts certainly puts force behind a particular answer to the priority question—it strongly privileges the intentional. Given that a rollback toward an answer more influenced by genetic or gestational elements is unlikely in the absence of a showing of serious harm, those concerned about contract pregnancy might consider how the moral risks of this practice might be minimized, and how such pregnancies might achieve moral gains that go beyond the gratification of private impulses.

james lindemann nelson

hilde lindemann nelson

BIBLIOGRAPHY

Anderson, Elizabeth S. 1990. "Is Women's Labor a Commodity?" Philosophy and Public Affairs 19(1): 71–87.

Andrews, Lori. 1989. Between Strangers: Surrogate Mothers, Expectant Fathers, and Brave New Babies. New York: HarperCollins.

Annas, George J. 1988. "Death without Dignity for Commercial Surrogacy: The Case of Baby M." Hastings Center Report 18(2): 21–24.

Baby M, In the Matter of. 537 A.2d 1227. (1988).

Baker, Brenda M. 1996. "A Case for Permitting Altruistic Surrogacy." Hypatia 11(2): 34–48.

Buzzanca, In re Marriage of. 61 Cal. App. 4th 1410, 72 Cal. Rptr. 2d 280 (1998).

Hartouni, Valerie. 1994. "Breached Birth: Reflections on Race, Gender, and Reproductive Discourse in the 1980s." Configurations 2(1): 73–88.

Johnson v. Calvert. 5 Cal. 4th 84; 851 P.2d 776 (1993).

Macklin, Ruth. 1994. Surrogates and Other Mothers: The Debates over Assisted Reproduction. Philadelphia: Temple University Press.

Nelson, Hilde Lindemann, and Nelson, James Lindemann. 1988. "Cutting Motherhood in Two: Some Suspicions concerning Surrogacy." Hypatia 4(3): 85–94.

Purdy, Laura. 1989. "Surrogate Mothering: Exploitation or Empowerment?" Bioethics 3(1): 18–34.

Purdy, Laura. 1996. Reproducing Persons: Issues in Feminist Bioethics. Ithaca, NY: Cornell University Press.

Radin, Margaret Jane. 1996. Contested Commodities. Cambridge, MA: Harvard University Press.

Ragone, Helena. 1994. Surrogate Motherhood: Conceptions in the Heart. Boulder, CO: Westview Press.

Raymond, Janice. 1990. "Reproductive Gifts and Gift-Giving: The Altruistic Woman." Hastings Center Report 20(4): 7–11.

Roberts, Elizabeth F. S. 1998. "'Native' Narratives of Connectedness: Surrogate Motherhood and Technology." In Cyborg Babies: From Techno-Sex to Techno-Tots, ed. Robbie Davis-Floyd and Joe Dumit. New York: Routledge.

Satz, Debra. 1992. "Markets in Women's Reproductive Labor." Philosophy and Public Affairs 21(2): 107–131.

Steinbock, Bonnie. 1988. "Surrogate Motherhood as Prenatal Adoption." Journal of Law, Medicine, and Health Care 16(1): 45–50.

Encyclopedia of Bioethics