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Surrogate Motherhood: Politics and Privacy edited by Larry Gostin, Indiana
University Press, pp 366, $29.95

ARE YOU thinking comfortably? Aspects of Surrogate Motherhood may disturb.
Try the idea of ‘mentally conceiving parents’. A preconception plan enables
them to declare a contractual intent to take custody of a child who will
be linked genetically to at least one of them. A deal is a deal. Language
and analogies drawn from the marketplace may unsettle and surprise. Surrogacy
is not an easy issue for anyone. Nor can the dilemmas arising from contemporary
surrogacy practices be resolved unless the significance of the increased
demand for infertility services also come under scrutiny. Let the buyer
beware.

The editor, Larry Gostin, of the American Society of Law and Medicine,
never explains why, when asked to chair the American Civil Liberties Union
Special Committee on Surrogate Parenting, he perceived the task to be ‘relatively
straightforward’. He changed his mind, and his collection of essays by 12
lawyers and law professors, a bioethicist and a theologian, together with
substantial appendices of source material and policy statements, challenge
and buttress arguments for and against surrogacy. The authors’ deliberations
encompass civil liberties, ethics, women’s autonomy and bodily integrity,
as well as constitutional and legislative principles.

Why not seek a substitute, a surrogate, with whom to initiate a pregnancy,
either by insemination or by an assisted conception technique? As a means
of gratifying a need for a child, what about the idea of ‘contracting with
consenting collaborators’ for the purposes of procreation? John Robertson
from the University of Texas School of Law argues that ‘moral condemnation
or speculation about exploitation, commercialism and slippery slopes alone
should not justify interference with fundamental decisions about family
formation’. George Smith, of the Catholic University Law School, Washington
DC, urges ‘judicial protection of the choice to procreate’ and urges ‘a
new right of familial procurement’ to facilitate surrogacy initiatives.

If the conditions of the surrogacy arrangement, and any compensation
and expenses the surrogate will receive, can be stipulated in a contract
signifying the commitments and expectations, why the concern? After the
birth, however, the surrogate does not usually expect to be responsible
for the baby or babies she has borne. For John Robertson this is ‘collaborative
conception’. However, if the arrangement breaks down, the custody of a newborn
child becomes a problem.

In 1988, when the originals of these 15 essays were published in a journal
of the American Society of Law and Medicine, the ‘Baby M’ case was topical.
And the book largely rides on, and is restricted by, the details of this
North American surrogacy case. A biochemist, William Stern, who was married
to a paediatrician, signed a contract with the intention of having a child
to raise to whom he was genetically linked. In return for $10 000 in ‘compensation
for services and expenses’, the surrogate, Mary Beth Whitehead, was impregnated
with his sperm and subsequently delivered a three-day-old paternity-tested
baby, her second daughter, to the Sterns. She then changed her mind. She
wanted the child. However, the Sterns obtained custody in the child’s ‘best
interests’, after nearly two years of litigation and with their surrogacy
contract voided as against the public interest. Significantly, the New Jersey
Supreme Court decided that biology should determine parentage. William Stern
was pronounced Baby M’s father and Mary Beth Whitehead her mother.

Paradoxically, now there is the possibility of certainty about paternity,
the centrality of birth to motherhood is called into question. As the authors
in Surrogate Motherhood tangle with the Baby M case, the extent of the challenge
posed by surro gacy arrangements to the premises which ground statutory
provisions and legal doctrines becomes clear. The meaning of ‘mother’, ‘father’
and ‘family’ are ambiguous in the context of surrogacy. Randall Bezanson,
of Washington and Lee University, challenges ‘the capacity of courts to
construct legal doctrine on the basis of largely, if not wholly, unexplored
social and cultural values’. His concern is the limits of judicial authority.

What about the involvement and authority of health care professionals
in surrogacy arrangements? Will they increasingly set the standards for
screening, evaluation, counselling and informed consent? Will they act,
as Karen Rothenberg, University of Maryland, suggests, as ‘guarantors’ of
the process? Will they thereby legitimate surrogacy as a ‘medically controlled
reproductive choice’? In August this year The Sunday Times carried the headline
‘Agency will offer babies without births’ and hailed an IVF ‘surrogate mother
pregnancy service’. An estimated 50 000 British women ‘could be helped by
the treatment’ according to the medical director of the clinic in question.

Can lawyers and doctors legitimately decide what policies should be
pursued in relation to surrogacy? Lisa Cahill from Boston College, Massachusetts,
questions the approach to policy that holds that ‘the intended parents’
are the legal parents: ‘In other words, it is choice and intention that
determine parenthood, and the social and legal task is to ensure that such
choices will be secure.’ What relationships between women, men and children
are being encouraged in such an approach to policy? For whom should surrogacy
be available? Who stipulates the conditions and who is in control? This
book provides only glimpses of intriguing changes in social arrangements
and cultural understandings in relation to surrogacy. Disturbing motherhood
indeed.

Frances Price is Senior Research Associate in Child Care and Development
Group, University of Cambridge.