Surrogate Motherhood and the Politics of Reproduction / Edition 1

by Susan Markens

Overview

Susan Markens takes on one of the hottest issues on the fertility front—surrogate motherhood—in a book that illuminates the culture wars that have erupted over new reproductive technologies in the United States. In an innovative analysis of legislative responses to surrogacy in the bellwether states of New York and California, Markens explores how discourses about gender, family, race, genetics, rights, and choice have shaped policies aimed at this issue. She examines the views of key players, including legislators, women's organizations, religious groups, the media, and others. In a study that finds surprising ideological agreement among those with opposing views of surrogate motherhood, Markens challenges common assumptions about our responses to reproductive technologies and at the same time offers a fascinating picture of how reproductive politics shape social policy.

Product Details

ISBN-13:	9780520252042
Publisher:	University of California Press
Publication date:	09/04/2007
Edition description:	First Edition
Pages:	277
Product dimensions:	6.00(w) x 8.90(h) x 0.80(d)

About the Author

Susan Markens is Assistant Professor in the Department of Sociology at City University of New York, Lehman College.

Read an Excerpt

SURROGATE MOTHERHOOD AND THE POLITICS OF REPRODUCTION
By Susan Markens
University of California Press Copyright © 2007 The Regents of the University of California
All right reserved.
ISBN: 978-0-520-25204-2



Chapter One THE NEW PROBLEM OF SURROGATE MOTHERHOOD

Legislative Responses

Surrogate motherhood can be viewed as a classic social problem in that its life history can be measured by the rise and fall of attention given to it. Media coverage is the first clear indicator of surrogacy's arrival as a social problem in the mid- to late 1980s. In the early 1980s, newspaper stories about surrogate parenting appeared only intermittently. The combined coverage provided by the New York Times, Los Angeles Times, and Washington Post totaled 15 articles in 1980, 19 in 1981, 8 in 1982, and 25 in 1983. News coverage dipped for the next two years until halfway through 1986, when Mary Beth Whitehead changed her mind and took Baby M from the Sterns. In that year, these three national papers published 41 articles on surrogacy. In the following year, during the Baby M custody trial, coverage of the issue peaked at a dramatic total of 270 articles. And in 1988, when the New Jersey Supreme Court handed down its decision on the case, although the count dropped, coverage was still relatively high, at 99 articles. Media attention ebbed and flowed in the following decade, staying at mostly pre-Baby M rates, except for 1990, when 41 articles were published among these three papers (see figure 1).

National public opinion polls indicate the impact of the Baby M case in etching surrogacy indelibly onto the national consciousness. A Gallup poll conducted during the 1987 trial found that 93 percent of those surveyed had heard of the Baby M case; 79 percent of the respondents in a Roper poll claimed they had read or heard enough about the case to feel they knew what it was about. Polls also captured the public's contradictory and ambivalent response to surrogate motherhood, both with regard to Baby M and more generally. For instance, a CBS/New York Times poll and a U.S. News & World Report poll found that most respondents favored William Stern receiving custody of the baby (74 percent and 75 percent, respectively); at the same time, when asked about whether such contracts should be legal or whether it was right or wrong for a woman to be a surrogate mother, respondents were evenly divided.

The rise and fall of surrogacy as a national social problem can be gauged by more than the news coverage the issue received. Legislative attention provides an important index as well. In 1987, the year of peak news coverage of surrogate motherhood, twenty-six state legislatures introduced seventy-two bills on the topic. In the following two years, twenty-seven states introduced seventy and sixty-three bills. By 1990, however, the number of states introducing legislation dropped to ten and the number of bills to twenty-eight; by 1992, seven states had introduced a total of thirteen bills. Over the next thirteen years, no more than nine states in any given year introduced surrogacy legislation-on average from four to seven states pursued the issue in any year-with as few as one bill introduced in both 1998 and 2002 and none in 2000. In addition to prompting an increase in the number of proposals for dealing with the problem of surrogate motherhood, the Baby M case influenced the type of policy responses proposed in the years immediately following the dispute. In 1987, bills were split fifty-fifty on whether to permit or prohibit the practice, but the proportion of bills that sought to prohibit the practice rose to 57 percent in 1988, 66 percent in 1989, and 64 percent in 1990. By the mid- 1990s, though, the vast majority of bills in state legislatures had taken a more accepting regulatory approach.

This chapter treats the Baby M case as a dramatic event that focused political as well as public attention on surrogacy and initially helped define it as a social problem (see also chapter 4, which examines the media's role in framing surrogacy as a problem, and chapter 5, which looks closely at surrogacy policy-making constraints and opportunities). Moreover, as a key critical discourse moment, this custody battle shaped the controversies and tensions over appropriate policy solutions for several years after the trial ended. Since the political arena represents an important institutional space where solutions to social problems are formed and debated, this chapter first surveys the range of legislative responses to surrogate motherhood, both here and abroad. Then, to better clarify why U.S. policy making in this area has lagged, the focus narrows to two representative states, New York and California, to trace the history of the process by which surrogacy as a social problem was discovered, defined, and (sometimes) resolved at the institutional level. The remainder of the chapter examines these two states' efforts to address the challenges presented by surrogate motherhood through public hearings, bill proposals, and floor debates, from shortly before the Baby M case through 1992.

POLICY RESPONSES TO THE PROBLEM OF SURROGACY ON THE INTERNATIONAL, NATIONAL, AND STATE LEVELS

Most industrialized nations have rejected or greatly restricted the practice of surrogate parenting. Australia, Canada, Denmark, France, Germany, Great Britain, Italy, the Netherlands, Norway, Spain, Sweden, and Switzerland all have national laws that prohibit or discourage the practice (see table 1). The United Kingdom and Germany impose criminal sanctions as well. The seriousness other nations have accorded the issue is also attested to by the fact that several countries have sponsored national commissions to study this new social problem. The reports prepared by these bodies frequently have served as guidelines for the national laws eventually enacted.

In contrast, in the United States there is no national-level legislation regarding surrogate parenting arrangements. The lack of consensus in the United States, and the ambivalence it represents, is thus singularly American and may be accounted for chiefly by two deeply ingrained national characteristics: our simultaneous exaltation of individual rights and laissez-faire approach to the marketplace and our protective stance toward families. An additional likely influence is the contentiousness of abortion politics in the United States. Some believe this factor is largely responsible for the United States' overall lack of federal regulation in the area of assisted reproductive technologies. In this regard, the lack of comprehensive surrogacy legislation parallels the country's legislative lacunae with regard to all assisted and genetic reproductive technologies.

As in other countries, however, there have been national hearings on surrogacy, such as the one held in 1984 on procreative technologies by the House of Representatives Committee on Science and Technology, Subcommittee on Oversight. In 1987, but after the close of the Baby M trial, another House-sponsored hearing was held. This time the Subcommittee on Transportation, Tourism, and Hazardous Waste of the Committee on Energy and Commerce called the hearing, in response to a bill introduced by Representative Tom Luken (D-Ohio). Luken's bill, HR 433, known as the Surrogacy Arrangements Act of 1987, proposed to "prohibit making, engaging in, or brokering a surrogacy arrangement on a 'commercial basis'" and to "prohibit advertising of availability of such commercial arrangements." Fifteen people testified at this hearing, and most who spoke opposed the practice. Then, in 1989, in an unusual cross-party alliance, House members Barbara Boxer (D) and Henry Hyde (R) introduced legislation that would have banned surrogate parenting. These national-level attempts to outlaw surrogacy parallel the dominant international response. But in the United States, unlike other countries, none of these activities produced either national legislation or influential advisory research reports.

The absence of national legislation on surrogacy in the United States can be explained largely by our federal system of government, which reserves to individual states power over certain areas, including family law. Only one attempt was made to produce a unified, state-level response to surrogacy in the 1980s. The National Conference of Commissioners on Uniform State Laws drafted the Uniform Status of Children of Assisted Conception Act in 1988. The act specified two alternative legislative options for states: (1) judicially regulating surrogacy-so that if a surrogate agreement is not approved by a court it is void; or (2) making all surrogate motherhood agreements void. The act was designed primarily to regulate the status of children born by assisted conception. However, even as a guideline to state legislatures, it was of limited influence. Only two states adopted either option. The legislative alternatives the act proposed merely captured the conflicting societal and political responses to surrogacy in the United States. The continuing lack of consensus was evident in 2000, when the act was replaced by the Uniform Parentage Act. The only policy recommendation proposed in the 2000 act recognized and regulated gestational agreements, but the section was made optional, without even a recommendation for or against its adoption. The act's authors were quite aware of the contentious and controversial nature of gestational surrogacy; they hoped an optional approach would increase the chances that states would adopt the act in its entirety.

Because so few states have developed legislation, disputes over surrogate parenting often end up in court. That most existing laws, all originally designed for other transactions (e.g., adoption; donor insemination), are inadequate for guiding decisions in cases involving surrogacy arrangements is obvious in the opinions handed down by most judges. For example, in the early 1980s, before most of the public had even heard about surrogate motherhood, a judge in Arcadia, California, who was presiding over a custody dispute involving a surrogacy arrangement urged the legislature to "consider coming out with a policy statement or legal guideline" that could be applied in similar suits in the future. In the Baby M case, Judge Harvey Sorkow stated that "many questions must be answered ... [and] the answers must come from legislation." As recently as 2004, a judge in Pennsylvania, one of the many states still without legislation that specifically deals with surrogate parenting, ended a ruling on a gestational surrogacy custodial dispute with a further plea for legislative intervention: "It is ... the court's hope that the legislature will address surrogacy matters in Pennsylvania to prevent cases like this one from appearing before the courts without statutory guidance." Nevertheless, state legislatures generally continue to respond very slowly to the problem of surrogate motherhood. And the laws that do exist at the state level reflect a range of positions on the issue.

In 1992, over five years after Baby M catapulted surrogate parenting into the national spotlight, only fifteen states had enacted laws pertaining to surrogacy. Of these laws, two-thirds can be classified as prohibiting and banning surrogacy and one-third as permitting and regulating surrogacy (see table 2). In 1993, the District of Columbia also passed legislation prohibiting surrogacy and declaring such contracts unenforceable. It was not until 1999 that legislation was again passed on the state level. That year, Illinois enacted regulations that recognized parental rights under gestational surrogacy transactions. Since then, most legislatures have not addressed the issue. Texas is a recent exception. A law passed there in 2004 allows for and regulates surrogate parenting arrangements. In general, though, at the beginning of the twenty-first century, states' most common response to surrogate motherhood remains a lack of legislation.

Among those states that have implemented specific laws, the dominant policy response is similar to that found on the international level, namely policies that ban and/or do not recognize surrogacy contracts. This contradicts the common assumption that the United States, unlike most other nations, uncritically embraces new reproductive practices such as surrogate motherhood. At the same time, the range of state-level legislation institutionalized thus far signals a diverse political response to surrogate motherhood. Additional evidence of the lack of consensus that surrounds surrogate parenting is present in the scores of bills introduced but never passed. Between 1987 and 1992, for instance, 208 bills on surrogacy were introduced into state legislatures. Fifteen were enacted. During this same period, fifty-five bills to form study commissions were introduced; the vast majority of these proposals didn't make it out of their respective legislatures. This relative standstill and inability to reach consensus has continued past the peak period of legislative attention to surrogate parenting. In the ten years between 1993 and 2003, fifty-one more bills on surrogacy were introduced into state legislatures, and only three were signed into law.

Furthermore, within the groupings of states broadly categorized as prohibiting or permitting surrogacy, there are many variations at the level of specific provisions. Of the states prohibiting surrogate parenting, some, like Louisiana and Nebraska, merely claim surrogacy contracts as void and unenforceable; others, like Kentucky and Washington, further specify that payments to surrogates are prohibited. Of the states with a prohibitory surrogacy approach, only Michigan criminalizes the practice. The states with a more permissive approach to surrogacy likewise exhibit a variety of legislative responses. Nevada, for instance, bans payments but provides limited guidelines for contracts. Both New Hampshire and Virginia provide extensive regulatory schemas for contracts. In New Hampshire, only contracts preapproved by the court are legally recognized. And although New Hampshire and Virginia allow and regulate surrogacy contracts, surrogates may be compensated only for medical and legal costs.

Emblematic of the schism in state responses, and of the general ambivalence and contradictions evident nationally, were the policy approaches to surrogate motherhood pursued by the New York and California legislatures in 1992. The former took a prohibitory approach and the latter a regulatory one. The remainder of this chapter provides a descriptive history, beginning in the early 1980s and ending in 1992, of the two states' legislative proposals pertaining to surrogate motherhood. This background provides the broad context for the two different bills passed by their respective legislatures in 1992. (See chapter 5 for a detailed look at the specific forces that shaped legislators' actions.) Equally important, New York and California's experiences are representative of the trends in state legislatures across the country and of the types of political actors that characterized this instance of reproductive politics. Thus comparing the different responses to this newly identified social problem in these two specific political arenas (the New York and California legislatures) may help clarify some of the reasons behind the varied and lethargic policy response to surrogate parenting in the United States more generally.

THE LEGISLATIVE RESPONSE TO SURROGACY IN NEW YORK AND CALIFORNIA

Pre-Baby M Legislative Attention to Surrogacy: 1980-86

In the early 1980s, most people in the United States were unaware of the phenomenon known as surrogate motherhood. In 1980 and 1981, news reports appeared regarding Elizabeth Kane, the first known surrogate mother, but this coverage was nowhere near as overwhelming as the media response to the Baby M case, which began in 1986. (See chapter 4 for details regarding media coverage of Baby M.) The general inattention to surrogacy did not prevent California Assemblyman Mike Roos (D) of Los Angeles from introducing a bill in 1981 that specifically addressed the practice. Roos's involvement began when he was invited to speak at a forum on surrogate parenting held in Los Angeles and organized by Whittier Law School. This exposure to the issue led Roos to conclude that surrogacy needed regulation to prevent those who participated in such arrangements from being taken advantage of, particularly the supposedly growing numbers of infertile couples. Around the same time, attorney Bill Handel, director of the Center for Surrogate Parenting in Los Angeles, guest-lectured at Whittier and had the students in the class draft a model regulatory bill. Roos agreed to sponsor this legislation. In the 1981 and 1982 legislative sessions, he introduced two versions of the bill. These proposals represented some of the first in the country to deal with surrogate motherhood. (See table 3 for a summary of California bills.) Both versions were known as the Surrogate Parenting Act, and each "would have established the legality, enforceability and regulation of surrogate parenting contracts."

(Continues...)

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Table of Contents

List of Illustrations
Acknowledgments
Introduction: Unfamiliar Families?

1. The New Problem of Surrogate Motherhood: Legislative Responses

2. “Choice” and the “Best Interests of Children”: Claiming the Problem of Surrogate Motherhood

3. “Moral Conundrums and Menacing Ambiguities”: Framing the Problem of Surrogate Motherhood

4. Competing Frames of Surrogacy: Comparing Newspapers’ Coverage of “Horror Stories”

5. Unity, Divisions, and Strange Bedfellows: Divergent Legislative Responses to Surrogate Motherhood

6. A Brave New World? Reproductive Politics from the Past to the Present

Appendix A: A Note on Methods and Data

Appendix B: A Multistate Comparison of the Impact of Sponsor’s Gender and Prochoice Position on the Success of Surrogacy Bills

Notes
Bibliography
Index