Surrogacy and the Politics of Commodification

Scott, Elizabeth S.

Section I being the introduction, this essay proceeds as follows. Section II offers a historical account of the legal and social issues surrounding surrogacy over the past twenty years. These issues present the puzzle that the rest of the article seeks to resolve. Section III examines how surrogacy was framed as commodification in the Baby M context. Although opponents of surrogacy had legitimate concerns about unfamiliar uses of reproductive technology, the political and legal responses to this case were to a considerable extent a combination of moral panic and interest-group politics. The vivid drama of Baby M came to symbolize the pernicious threat that commercialization of reproductive technology posed to conventional understandings of the family and of motherhood. Opinion leaders, primarily religious groups and feminists, reinforced the moral panic and formed an unlikely but effective coalition that persisted for several years. Of particular interest is the role of feminists in the political arena and why they ultimately unified in a stance favoring legal prohibition of surrogacy that was in tension with other feminist views about reproductive agency. In section IV, I seek to explain how and why the social and political meanings of surrogacy have changed over the past decade. Several factors have been important: The moral panic has dissipated, as many of the predicted harms have not been realized. Further, advances in IVF have expanded the use of gestational surrogacy, which, because the surrogate is not genetically related to the baby, was less readily framed as commodification and thus was more palatable than traditional surrogacy. Finally, the interest-group dynamic has changed: women's groups have withdrawn their engagement with the issue, perhaps because their arguments against surrogacy were increasingly adopted by anti-abortion advocates. These conditions have contributed to a political climate in which lawmakers have adopted a pragmatic approach, authorizing surrogacy arrangements while seeking to minimize potential tangible harms. In a liberal society, this stance seems like the correct governmental response to a social practice that some continue to view with concern but about which no consensus exists.


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Law and Contemporary Problems

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Duke University School of Law
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December 10, 2015