Surrogacy and Maternity

The question of surrogacy is one of the few that courts have gotten right in recent questions in reproductive technologies. Here, I will present an argument for why surrogacy contracts cannot be considered valid contracts, working from the premise that children cannot be sold. In all cases, surrogacy contracts should be voided, and those cases that continue to exist should be considered under adoption laws.

There are two forms of surrogate motherhood. The first is traditional surrogacy. In traditional surrogacy, a woman is artificially inseminated with the sperm of the man wishing to adopt the child. In this case, the surrogate mother is also the genetic mother of the child. The second is gestational surrogacy. In gestational surrogacy, an embryo from the man and woman wishing to adopt is implanted in another woman. In this case, the surrogate mother is not the genetic mother of the child.

Let us say that a woman is paid $10,000 to be a traditional surrogate mother. This $10,000 cannot entitle the hopeful adopters to the child. Either the money is for the child or for the labour of the surrogate. It cannot be for the child, as that would be selling a baby. Therefore, it must be for the labour of the surrogate. However, the labour itself makes the surrogate into the mother of the child. All of these contracts make financial payment conditional on transfer of custody. When a mother takes money for her child, that is also selling a baby. Therefore, it is selling a baby either way.

Some argue that a surrogate mother is not really a mother of the child, but more of a caretaker for someone else's child or an in utero babysitter. This is false. In traditional surrogacy, the surrogate supplies the egg and gestates the infant. There is no coherent definition by which this is not motherhood. By the very act of providing the egg and gestating the infant, the child becomes her child. If she were to sign a contract gaining money for custody of this child, she would be selling her baby.

The question becomes more complicated with gestational surrogacy. Since the surrogate does not provide any genetic material, does the act of gestation make the woman a mother? Unfortunately, these have never been separated until recently, so our intuitions are less than clear. However, it is worth noting that for thousands of years, because of botany misapplied to human biology, millions of people believed that motherhood was entirely gestational. Nonetheless, despite this gestational premise, it never occurred to anyone to argue that a woman was not a mother because she merely carried a man's seed in her womb. We should not be so quick, then, to argue that a woman is not a mother because she merely carries a couple's embryo in her womb. Instead, the very act of gestation makes her the child's mother, and she cannot sign a contract gaining money for the custody of this child, since that would be selling the child.

As such, any surrogacy arrangement would be selling the child. A surrogate mother is a mother, and she cannot make a contract to sell custody over the child without selling the child.