Surrogacy and the Politics of Commodification

Elizabeth S. Scott, Columbia Law School


This essay examines the changing social and political meaning of surrogacy contracts over the twenty years since this issue first attracted public attention in the context of the Baby M case in the 1980s. In the protracted course of the Baby M litigation, surrogacy was effectively framed as illegitimate commodification - baby selling and the exploitation of women. This framing can be attributed to a moral panic generated by the media, politicians and a coalition of interest groups opposing surrogacy - primarily feminists and religious conservatives. The framing of surrogacy as commodification had far reaching effects on legal regulation. In the post-Baby M period, lawmakers in many states moved to prohibit or severely restrict surrogacy arrangements. In recent years, however, the framing of surrogacy as commodification has been replaced to a large extent by a more benign characterization which emphasizes the useful service provided by surrogates to childless couples. Further, over the past decade, regulators increasingly have focused on the goal of reducing uncertainty and providing procedures to efficiently establish the parental status of intended parents.

This essay seeks to explain these changes. Several factors have been important: First, hostility to surrogacy has declined because the moral panic has dissipated as many of the predicted harms have not been realized. Further, advances in in vitro fertilization (IVF) have expanded the use of gestational surrogacy, which is less readily framed as commodification and thus, more palatable than traditional surrogacy. Finally, the interest group dynamic has changed: Women's groups have withdrawn, plausibly because the kinds of arguments made against surrogacy increasingly were adopted by anti-abortion advocates. These conditions have contributed to a political climate in which lawmakers have adopted a pragmatic approach, regulating with a goal of minimizing the social cost of surrogacy.