Looking Back At Surrogacy

I’ve been working on a piece of writing–something a good deal more extensive than the blog generally allows–about surrogacy.   It’s an effort to look back and think about how views on surrogacy (and the practice of surrogacy itself) have changed over the years.   Imagine my surprise when this video appeared on the NYT website early this week.  It’s worth a look.

It’s nearly 30 years since Mary Beth Whitehead entered into a surrogacy contract with William and Elizabeth Stern.  Baby M is grown and has children of her own.  And the world has changed in oh-so-many ways.   Does any of this matter in how we think about surrogacy?

The New Jersey Supreme Court’s decision in Baby M shaped how we (as a legal culture) thought about surrogacy in a lot of ways, even though it was a decision binding in only one state.    But it was generated in a different time, against a different background.  That doesn’t mean that it is meaningless, but it may mean that our understanding of it has or will change.

I think there are at least three major changes to note since Baby M.   Each is important in its own way. What they add up to is what my longer piece is about.  But they’re all on display in the NYT video, too.  So let me take a moment.

1.  The advent of IVF and its widespread availability.   Mary Beth Whitehead is what would now be called a “traditional surrogate.”  That means she was genetically related to the child she gave birth to.   To put it differently, she is Melissa Stern’s genetic mother.

Before IVF this was really the only way surrogacy could work.    And the combination of genetic connection plus pregnancy/birth gave Mary Beth Whitehead a very strong claim to be a legal parent to the child.

But then came IVF.  And now the common form of surrogacy is “gestational surrogacy” in which the surrogate is not genetically related to the child she gives birth to.   (The egg may come from the intended mother or it may come from a provider who does not intend to be a parent.)   To many people (and to at least some judges) this makes a big difference.   To the extent we think genetic connections are important, or even defining, it makes surrogacy more appealing/less controversial.   Also, as noted, it makes a difference to at least some judges so in at least some place it makes surrogacy legally practical.  Of course, there’s much more to say about all this, but I’ll just nod in that direction and move on.

2.   Globalization/communications innovations.   I’m going to lump these two together because I think they intertwine.   Not only is global travel easier, but global communication is a piece of cake.   It’s all here at my fingertips.   So now you have people flitting all over the globe for all sorts of reasons.   Medical tourism becomes possible, and a subset of that is reproductive tourism and one major component of that is surrogacy.   It’s perfectly possible to have a surrogate in Thailand or India or Georgia or California, for that matter.   And people do.

Of course this is expensive–but surrogacy is pretty expensive to begin with once you start with an assumption of IVF and all the medical intervention that entails. (And then there’s the cost of raising a child…..)   And again, there are many problems raised by the globalization of surrogacy.   Another nod goes here.

3.  The emergency of gay men as parents.   I don’t think many people thought about gay men and surrogacy in the discussions of Baby M in 1985.    But it is clear that now gay men are raising children and many of them are choosing surrogacy as a way to begin that endeavor.   Though gay male parenting may not have been on the radar in 1985, it’s certainly there now.   Indeed, from the point of view of some surrogates, gay men are the ideal customers/clients:  There’s no woman to feel threatened by your role in giving birth to the child.

As I said, each of these changes is illustrated in the Times video.  It gives you a lot to think about.  And I have to say, it just doesn’t look like a Baby M world to me these days.