Surrogacy

The United States is unquestionably the world's leader in availability of surrogacy arrangements. Britain, for example, implemented a ban against commercial surrogacy—in other words, any arrangement in which a surrogate receives payment for her services. On the other hand, Israel permits commercial surrogacy but the Embryo Carrying Agreements Law (1996) advances the position that a "severe effort" be made to permit only unmarried women to serve as surrogates because it is reasoned that allowing married women to serve as surrogates would violate culturally prescribed definitions and norms about kinship, the status of the child that is born, and family (Kahn 2000). This position stands in contrast to U.S. arrangements in which established surrogate mother programs typically insist that their surrogates be either married or in a committed relationship. They also require surrogates to have children of their own in order to discourage them from wanting to keep the child. Programs reason that an unmarried woman who has never had children is much more likely to want to keep a child produced through surrogacy than a married woman with children of her own (see Ragoné 1994, 1996, 1998).

From the couple's perspective, surrogacy is conceptualized not as a radical departure from tradition but as an attempt to achieve a traditional and acceptable end: to have a child who is biologically related to at least one of them—that is, traditional surrogacy. In the gestational surrogacy arrangement, the child may be related to both the mother and father. This idea is consistent with the emphasis on the primacy of the blood tie in EuroAmerican kinship ideology and the importance of family. One of the most interesting aspects of a surrogate's perception of the fetus she is carrying is that it is not her child. This belief holds true whether the child is produced with her genetic contribution (50% in traditional surrogacy and, of course, in a traditional pregnancy) or not genetically related to her at all, as in gestational surrogacy. It will be interesting to learn whether the Israeli policy, which allows only unmarried women to serve as surrogates, will result in an increase in the number of surrogates wanting to keep the child(ren) they produce.

Because of the liberal policies and efficient programs available in the United States, couples routinely travel from abroad to participate in surrogate motherhood arrangements. The growing prevalence of gestational surrogacy has introduced a host of new legal and social questions, especially concerning a recent legal precedent in which a surrogate who does not contribute an ovum toward the creation of a child has a significantly reduced possibility of being awarded custody of the child.

But not all gestational surrogacy arrangements involve the couple's embryos; numerous cases involve the combination of donor ova and the intending father's semen. Why, then, do couples pursue gestational surrogacy when traditional surrogacy (with the surrogate providing the ova) provides them with the same degree of genetic linkage to the child, has a higher likelihood of being successful, and costs less? Several reasons were cited by members of the staff of the largest surrogate mother program in the world, the primary one being that many more women are willing to donate ova than are willing to serve as traditional surrogate mothers.

The second reason, as previously mentioned, is that the U.S. courts would, in theory, be less likely to award custody to a gestational surrogate. The growing prevalence of gestational surrogacy is, in part, guided by recent legal precedents in which a surrogate who does not contribute an ovum toward the creation of the child has a significantly reduced possibility of being awarded custody in the event that she reneges on her contract and attempts to retain custody of the child. However, although legal factors have certainly contributed to the meteoric rise in the rates of gestational surrogacy, it should be remembered that for couples the ability to create a child genetically related to both parents is the primary reason that gestational surrogacy continues to grow in popularity.

In June 1993, in a precedent-setting decision, the California Supreme Court upheld lower and appellate court decisions with respect to a gestational surrogacy contract. In Anna Johnson v. Mark and Crispina Calvert (SO 23721), a case involving an African-American gestational surrogate, a Filipina-American mother, and a EuroAmerican father, the gestational surrogate and commissioning couple both filed custody suits. Under California law, both of the women could, however, claim maternal rights: Johnson, by virtue of being the woman who gave birth to the child, and Calvert, who donated the ovum, because she is the child's genetic mother. In rendering its decision, however, the court circumvented the issue of relatedness, instead emphasizing the intent of the parties as the ultimate and decisive factor in any determination of parenthood. The court concluded that if the genetic and birth mother are not one and the same person, then "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." Perhaps most important, when commissioning couples choose to use donor ova and gestational surrogacy, they sever the surrogate's genetic link to and/or claim to the child, whereas in the traditional surrogacy arrangement the adoptive mother must emphasize the importance of nurturance and social parenthood while the surrogate mother deemphasizes her biological and genetic ties to the child in order to strengthen the adoptive mother's relationship to the child.

An additional reason for choosing gestational surrogacy, and one that is of critical importance, is that couples from certain racial, ethnic, and religious groups (such as Japanese, Taiwanese, and Jewish couples) in the past often experienced great difficulty locating surrogates from their own groups. They were, however, able to find suitable ovum donors. Thus, couples from various ethnic/cultural, racial, or religious groups who are seeking donors from those groups often pursue ovum donation and gestational surrogacy. Gestational surrogates reason that they (unlike traditional surrogates and ovum donors) do not part with any genetic material, and they are thus able to deny that the child(ren) they produce are related to them. Ovum donors however do not perceive their donation of genetic material as problematic. Why women from different cultural groups are willing to donate ova but not serve as surrogates is a subject deserving of further study.

In conclusion, it can be said that all the participants involved in the surrogacy process wish to attain traditional ends, and are therefore willing to set aside their reservations about the means by which parenthood is attained. Placing surrogacy inside of tradition, they attempt to circumvent some of the more difficult issues raised by the surrogacy process. In this way, programs and participants pick and choose among U.S. cultural values about family, parenthood, and reproduction, now choosing biological relatedness, now nurture, according to their needs.