In 1992, New York became the 18th state to ban paid surrogacy(Belkin B1). At that time an estimated “40 percent of all surrogate births in the United States [occurred] in New York” (B1). But in the U.S., the trend towards banning surrogacy has now reversed.
Today only three states ban paid surrogacy and it appears that in April, it will once again become legal in New York (Chuck, 2019). While still relatively uncommon in the U.S., in addition to recently becoming legal in many more jurisdictions, surrogacy has rapidly also become more common—almost tripling during the past decade (Centers for Disease Control and Prevention et al., 53). In contrast to this, many jurisdictions outside the U.S. have chosen to ban paid surrogacy and that number has been increasing (Ray, 2018). What might lead someone to oppose surrogacy? Surrogacy’s attractions are obvious: Infertility is a source of terrible sorrow. The desire for children is good and the technologies that promise to make children possible appear miraculous. Focusing on the desires of prospective parents alone, surrogacy seems like an unalloyed good, allowing couples to have a baby biologically related to one or both of them, even if they cannot physically carry the child. However, in considering whether surrogacy should be facilitated by law, as it now is in most of the U.S., or banned as it is in much of the rest of the world, it is essential to note that the prospective parents are not the only parties involved. We must ask about the repercussions surrogacy has for others: the babies born of these technologies, the mothers who carry them, the individuals who sell their genetic material to make them, and society at large.
Here I focus on those who carry these babies. There are two competing alternatives for thinking about the woman who does this: as a mother or as a carrier.
Surrogate as carrier: Almost all of today’s surrogacy is gestational. A surrogate conceives a child using someone else’s egg (this could be the intended mother’s egg or one purchased from a young woman willing to sell). Because the woman’s own egg is not used, surrogacy advocates describe her as a gestational carrier rather than a mother. This label suggests that conceiving, carrying, and delivering a child is not only not an essential part of motherhood—a point we accept because adoptive mothers are without question truly mothers–but it also suggests that conceiving, carrying and delivering a child is perhaps not even an important part of what it is to be a mother. New technologies challenge us to adapt old definitions of motherhood to new realities, but how can the woman who endures morning sickness, eats and drinks protectively, feels the baby kick, labors to push out the baby after 9 long months, and whose breasts swell to feed the infant, not be understood as a mother?
Decoupling the womb from motherhood is dangerous. Because affluent women don’t volunteer as surrogates, we are tempted to suppose that gestation is the work of the poor, the desperate, and the uneducated. Unfortunately, looking at gestation this way has the potential to devalue all pregnancies. Women who have been pregnant and given birth know that gestation and delivery can be hard, painful work, but it is good work that binds a woman to her baby.
Surrogate as mother: If conceiving, carrying and delivering a child makes one a mother, surrogacy is problematic. Surrogacy relies on contracts enforced by the state. A surrogacy contract obligates the mother who nurtured the baby with her body for nine months to sever maternal attachment, to abandon what under any other circumstances would be weighty responsibilities of parental duty and care. Abandoning parental responsibilities is something we generally understand as immoral. Can a surrogacy agreement alter this?
Adoption offers the closest analog to surrogacy, yet there are important key differences. A harsh way of characterizing the contrast between adoption and surrogacy would be to say that while adoptive parents rescue abandoned babies, in a surrogacy agreement, prospective parents induce a woman both to conceive and to abandon her baby. However, such a characterization misses something important: prospective parents enter surrogacy agreements with the intention of raising these “abandoned” babies as their own and do so precisely because these babies are so wanted. Many times the baby is the product of at least one intended parent’s genetic material. Like other parents, most prospective surrogate parents intend to further the good of the children they plan. In this sense, these babies are far from being abandoned. However, this observation doesn’t fully answer the concern. The adoption analogy can be extended further: we do not celebrate women who abandon their babies after birth. However, we do celebrate the women (“birthmothers”) who arrange for their infant to be claimed by adoptive parents. Surrogacy involves both elements: abandonment and adoption. Should it be celebrated? We celebrate adoption as a good because it prioritizes the good of the child and her new parents. When a child’s situation is such that her biological parents can’t or won’t rear her, adoptive parents seek her good as well as their own by providing a home and family. By contrast, surrogacy prioritizes the desires of prospective parents, not children, because no child yet exists. The conception of the surrogate child isn’t in the baby’s interest, but the parents’.
In an adoptive situation, biological parents may change their minds up to the last moment. By contrast, if a surrogate comes to realize–during the more than nine months after she signs a contract–that she has reservations about her baby’s intended parents, she is still legally bound to give the baby to them. Giving a baby up under such circumstances seems immoral; entering a contract requiring one to do so is a mistake. Conceiving a child on behalf of someone who cannot seems altruistic—but to conceive a child is to take on responsibilities. To conceive a child under a surrogacy contract is to take on responsibilities that one is legally barred from accepting. As with adoption, one may seek to transfer her responsibilities, but this doesn’t free her of accountability for conceiving a child that she does not intend to parent. It is concerns like these that have led other nations to oppose commercial surrogacy. I believe we should as well.
Belkin, Lisa. “Surrogate Law Vs. Last Hope of the Childless; Facing New Restrictions in New York, Couples Vow to Find Loopholes.” The New York Times, 28 July, 1992, pp. B1, https://www-nytimes-com.erl.lib.byu.edu/1992/07/28/nyregion/surrogate-law-vs-last-hope-childless-facing-new-restrictions-new-york-couples.html.
Centers for Disease Control and Prevention, American Society for Reproductive Medicine, Society for Assisted Reproductive Technology. 2016 Assisted Reproductive Technology National Summary Report. US Dept of Health and Human Services, Atlanta, GA, 2018.
Chuck, Elizabeth. “The Long Wait for Legalized Surrogacy may Soon End in New York.”, 7 February, 2019, https://www.nbcnews.com/news/us-news/long-wait-legalized-surrogacy-may-soon-end-new-york-n968541.
Ray, Saptarshi. “India Bans Commercial Surrogacy to Stop ‘Rent a Womb’ Exploitation of Vulnerable Women.” The Telegraph, 20 December, 2018, https://www.telegraph.co.uk/news/2018/12/20/india-bans-commercial-surrogacy-stop-rent-womb-exploitation/.
“Surrogacy in Ukraine.”, https://www.sensiblesurrogacy.com/surrogacy-in-ukraine/#surrogacy-ukraine-legal.
 Paid (commercial) surrogacy occurs when a woman contracts to carry (gestate) a baby for an individual or couple who are its intended parents in exchange for payment.
 Depending on whether they are able to use their own sperm and eggs or must purchase them from others.
 The term “conceive” is appropriate. “To become pregnant,” “to cause to begin” (Merriam-Webster). A woman who chooses to carry a surrogate pregnancy does both.