Over a week ago I wrote that I needed to come up with some new language to distinguish between two forms of surrogacy that I had been calling “altruistic surrogacy” and “commercial surrogacy.” The distinction is, to my mind, crucial. But the designations I was using weren’t really apt. The vast majority of surrogates are motivated in part by altruism, whether they work in a more generally commercial system or not. And the majority of surrogates receive significant amounts of money, whether they are engaged in what has been called compassionate or altruistic surrogacy or not. Thus, most surrogacy is both altruistic and commercial.
This recognition lead me to want to find a better name for the forms of surrogacy I seek to distinguish, one which actually emphasizes the difference. I’ve been casting about now for over a week with little success. In the meantime, I must have something to use. So for now, though I don’t think it is perfect, I will settle on “binding surrogacy” instead of what I have been calling “commercial surrogacy.” “Binding surrogacy” is at least a move in the right direction. In what I have been calling “commercial surrogacy” and will now call “binding surrogacy” the surrogate is legally bound to surrender the child when it is born.
The name falls short in one regard, however. Not only is the surrogate legally bound in this type of surrogacy; the court will compel specific performance of her obligation. That is, the court will compel her to actually do the thing she has committed herself to do. It will compel her to surrender the child. That might not seem noteworthy, but it actually is. For most ordinary contracts, one is obliged to follow through on one’s commitment, but if you don’t–if you breach your obligation–you are subject to damages (ordered to pay money) rather than an order for specific performance. I think it is likely the case that one is bound by a contract in either case–whether breach will result in an award of damages or an order for specific performance. But I want binding surrogacy to refer only to an arrangement where specific performance will be compelled by a court. (Interestingly, I have not found a term used in contract to distinguish an obligation that will be specifically enforced from one that will not be.)
With this understanding, I think “binding surrogacy” will have to do for now. And it takes the place of “commercial surrogacy.”
The next question would be what is the alternative to “binding surrogacy?” I will not use “non-binding surrogacy”–though it is an obvious contrast–because it may not actually be an accurate description. I think my murkiness here is perhaps in part due to a bit of murkiness in my thinking. The truth is there are a wide variety of ways in which surrogacy can be and doubtless is structured. It may be that a single name cannot capture the range of salient features of alternative arrangements. I still need to think about that.
So for now, I will use “binding surrogacy” to describe surrogacy where the surrogate can be legally compelled to deliver the child. Tomorrow I’ll try to restate some of my earlier positions using this language and see if they still hold up.
3 responses so far ↓
surrogate // May 20, 2008 at 5:16 am |
I always like your blog. You have great knowledge of surrogacy and surrogacy related issues. Keep up the good work.
robynanne // August 8, 2008 at 10:41 am |
Hmm, not sure I like the term. I mean, that implies, in a way, that altruistic surrogates are not bound to follow through. What, only the ones that are doing it for the money are required by law to give the baby back to the parents. (And by ‘back’, I am refering to gestation carriers, not traditional surrogates, as it was the parents’ baby in the first place.)
I don’t know. I think you need to keep looking. OR – you still call it altruistic and commercial because you don’t have to be talking about strictly people that get any kind of compensation or not. It can just be people that are motivated primarily by altruism (even if there is some form of compensation) and people that are motivated primarily by the finances (even if there is a bit of altruism in there as well.)
julieshapiro // August 11, 2008 at 10:03 am |
I think the implication that troubles robynanne highlights the distinction I want to draw here. It’s been a while now, and I do still think that using the terms “altruistic” and “commercial” doesn’t really capture the difference I want. The difference I want is precisely that that is troubling–between those who can be legally compelled to follow through and those who cannot be. I’m reluctant to try to divide things up by people’s primary motives–motives are so hard to know and so often mixed.
And as for whose baby it is from the beginning? Well, that’s really the 64 thousand dollar question. IF you think it is the baby of the contracting couple from the get go, then of course the surrogate should have to give it back, because she is essentially analogous to a baby-sitter. But if you think it is the baby of the surrogate, then she cannot be forced to give up her child simply because she said she would. The real question is always whose baby is it–who are the parents of that child and, at least as important, WHY are those people the parents. The why matters to me because it has implications other places.