Hill, John Lawrence. "The Case for Enforcement of the Surrogate Contract." Politics and the Life Sciences 8, 2 (February, 1990):147-60.
Introduction. From the time of the first reported birth by a surrogate parenting arrangement in the U.S. in 1976 (United States Congress, 1988, 36) to the advent of the Baby M case, surrogate parenting arrangements in America had enjoyed a position of relative obscurity, even benign disregard, among the general public. While scholarly commentators had noted the surrogacy phenomenon for some years with varying degrees of approval and disapproval, the decision by the New Jersey Supreme Court, and the lower court before it, appear to have galvanized opposition to surrogacy. Indeed, even though the New Jersey Supreme Court decision in the Baby M case is not legally binding in other jurisdictions, the symbolic effect of the opinion appears to have engendered a groundswell of reaction against surrogacy which should not be underestimated (Hanley, 1988, A1).
The negative reaction to surrogacy appears to be almost univocal. Reasons for this opposition vary widely both among scholars and the general public. Conservatives look upon surrogacy as another sign of the decline of the traditional family and as the "lawless surrender of one’s body" analogous to prostitution (Kass, 1979, 47). Liberals object to surrogate arrangements on the grounds that they represent a weakening of the biological tie between parent and child which has an important psychological basis (Bluestein, 1982, 142) or, minimally, is invested with great social significance as a conventional matter (Schoeman, 1981, 18). Criticism from a variety of theological perspectives focuses on what is deemed to be the "unnatural" separation of the coital, gestational and childrearing phases of reproduction (McCormick, 1981, 38; Ramsey, 1970, 311-12). Finally, even feminists are divided with respect to the reasons for their (almost universal) opposition to surrogate arrangements. Some view surrogacy as a means of confining women to the reproductive role by investing it with an economic incentive, (Corea, 1985) while others decry surrogacy as an attempt to alienate women from this same role by fostering a class of "breeders" to carry out the reproductive needs of society (Rothman, 1984, 23-33).
Opponents of surrogacy have marshaled a range of other arguments, from the claim that surrogacy is exploitative of surrogates because of the allure of easy money (Corea, 1985, 227-29) to the charge that compensation is unconscionably low (Andrews, 1987, 35). Finally, one commentator has even gone so far as to suggest that the current conflict between Arabs and Jews is a direct result of the world’s first surrogate arrangement between Abraham and his maidservant Hagar, by which Ishmael was born (Krimmel, 1983, 36).
Notwithstanding this critical response on the part of the scholarly public, by 1988 12,000 to 15,000 couples seeking information on surrogate programs had contacted surrogate parenting agencies (Overvold, 1988, 79). Concomitantly, between 1980 and 1988, roughly 25,000 women contacted surrogate agencies to inquire about becoming surrogates (Overvold, 1988, 125). Over 2,000 of these were accepted into surrogate programs in 1986 alone (Overvold, 1988, 125).
Given these figures, the debate over surrogacy in America is not likely to diminish. In this article, I argue that rather than prohibiting surrogacy or simply refusing to honor the surrogate contract, the interests of all concerned are best served by having a closely regulated form of surrogacy. I begin by examining the various factors that have created an increased demand for methods of collaborative reproduction in general and surrogacy in particular. Next, I outline and evaluate three possible policy options¾ prohibition, nonenforcement and regulated enforcement of surrogacy¾ which may be adopted by the states. In this context I argue that a system characterized by government regulation and enforcement of surrogate contracts best serves the interests of prospective parties to surrogate arrangements and the public in general. Finally, I conclude with a number of general suggestions regarding the regulation of surrogate contracts.