Surrogate Mothers: An Exploration of the Empirical and the Normative

Introduction 555I. Harm to Surrogate Mothers: Evaluating the Empirical Objection 558A. Overview of the Empirical Objection 558B. Empirical Evidence on Surrogate Mothers in the UnitedStates 5591. Demographic & Psychological Profile 5602. Entering the Process 5623. Relinquishing the Baby 5624. Motivations 563C. Counterarguments 566II. Harm to Society: Evaluating the Normative Objection 568A. Overview of the Normative Objection 568B. Surrogacy as Implicating Social Anxieties 5711. The Political and Social Context Leading up to Baby M...5732. The Baby MCase as Encapsulating Social Anxieties 578Conclusion 581IntroductionIn 1986, Mary Beth Whitehead refused to give up the baby she was carrying as a surrogate for Elizabeth and William Stem. Baby M,1 as the baby and the court case name came to be known, has become shorthand for the controversy around surrogacy.2 But, in the days following Baby M, it was Mary Beth Whitehead, the surrogate mother, who sparked the most intense debates over motherhood, women's roles, and family in American society.Arguments against surrogacy focusing on the surrogate mother3 can be characterized as one of two types: (1) surrogacy is bad because it directly harms the surrogate mother; and (2) surrogacy is bad because it harms society, whether or not it harms the individual surrogate. The first line of argument has been empirically evaluated through study of the actual experience of surrogate mothers; the second line of argument is difficult to evaluate empirically because it alleges a less tangible, normative harm to society.This Article suggests that the opposition to surrogacy was driven more by the second type of argument than the first, although critics made both with equal seriousness. Part I of this Article argues that the first line of argument, quite early on, was seriously challenged by empirical studies demonstrating that, in the vast majority of surrogacy arrangements, surrogate mothers have positive experiences, have no issues relinquishing the child, and want to be surrogates again.4 Yet, uneasiness with surrogacy remains: surveys of public attitudes indicate that the majority of Americans still disapprove of surrogacy and consider it the least acceptable use of reproductive technologies.5 Commentators and academics, moreover, continue to criticize surrogacy normatively without explicitly referencing empirical studies,6 extrapolating from outlier cases like Baby M,7 or, in a purely normative sense, claiming exploitation and commodification of women as per se social harms of surrogacy irrespective of empirical research.8 This suggests that the normatively driven concern of harm to society, rather than direct harm to individual surrogate mothers was, and perhaps continues to be, the principal factor behind opposition to surrogacy. Part II of this Article attempts to explain why surrogacy implicated fears of widespread societal harm even when the vast majority of individuals directly affected appeared to not suffer harm (and, in the case of commissioning parents, received immense joy). The Article suggests that because surrogacy triggered many social anxieties regarding motherhood, class, race, and family structure-encapsulated in the Baby M case-it became resonant and salient across American society as symbolic of underlying anxiety in an era when many traditional norms were being challenged.The observation that opposition to surrogacy is driven more by concerns of normative harm to society writ large than by direct harm to surrogate mothers may be an obvious one given our familiarity today with a similar dynamic with regard to a host of other controversial issues. Nonetheless, recognition of this aspect of opposition to surrogacy is important for several reasons. First, the argument that surrogacy was harmful to surrogate mothers as an empirical matter was widely made. …