Center for Gender & Sexuality Law
In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor.
This mundane story of the legislative process in action stands in sharp contrast to the political tale of surrogacy that unfolded in the 1980s and early 1990s as the Baby M case left its mark on American law. It was through the lens of Baby M that this innovative use of reproductive technology was first scrutinized as an issue of social, political, and legal interest. Over the course of the litigation between the intended parents, William and Elizabeth Stern, and the surrogate mother, Mary Beth Whitehead, hostility toward commercial surrogacy arrangements hardened. Opponents of surrogacy – mostly feminists and religious groups – argued that the contracts were baby-selling arrangements that exploited poor women who either were coerced or did not understand the consequences of their decisions. Opponents argued that surrogacy degraded the female reproductive function and undermined the family. This framing of the transaction as illegitimate commodification was adopted by the New Jersey Supreme Court in Baby M and prevailed for several years thereafter, with far-reaching effects on legal regulation. By the early 1990s, many states had enacted laws prohibiting or severely restricting surrogacy agreements. Some observers predicted the end of this particular use of reproductive technology.
But that did not happen. In fact, the politics and social meaning of surrogacy arrangements have slowly changed, and the alarm and hostility that surrounded this issue have diminished substantially. An alternative frame has emerged, in which altruistic surrogates (contractually bound and compensated nonetheless) provide the "gift of life" to deserving couples who otherwise would be unable to have children. News stories about surrogacy arrangements in the past decade have tended to be upbeat, human-interest tales describing warm relationships between surrogates and the couples for whom they bear children – a far cry from the acrimonious battle between Ms. Whitehead and the Sterns over Baby M.
The political and judicial response to surrogacy has also changed in recent years. In Illinois and other states, the contemporary legislative approach has been largely pragmatic, driven by a perception that parties will continue to enter these agreements and thus, that it is important to have procedures that establish parental status in intended parents."° In the absence of statutory authority, several courts, including the California Supreme Court, have also enforced gestational-surrogacy contracts and have held that the intended parents can be named on the birth certificate." Although social conservatives continue to speak out against surrogacy in the political arena,1 2 most contemporary groups interested in this issue advocate in favor of laws enforcing the arrangements."
Elizabeth S. Scott,
Surrogacy and the Politics of Commodification,
Law and Contemp. Probs.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/321