The Origins of Surrogacy

The United States are the pioneers and leaders of the international surrogacy market. The first surrogacy agencies (when traditional surrogacy was practiced) opened in the late 1970s and by the mid-1980s, there were around 20 agencies all over the country (Klein, 2017). The United States are now the first destination for reproductive tourism of intended parents from abroad, as well as a country in which babies generated through surrogacy are imported by American citizens who choose to shop for surrogacy services abroad in cheaper markets (Jacobson, 2020). Moreover, American clinics and agencies do not operate only within domestic boarders but also abroad.

The official number of babies born through surrogacy in the United States has not been collected and neither has any demographic data on surrogates or intended parents been made available (Jacobson, 2018). However, as already reported in Chap. 3, the National Summary Report on Assisted Reproductive Technology, elaborated by the Centers for Disease Control and Prevention, American Society for Reproductive Medicine, and the Society for Assisted Reproductive Technology reported the following information: the number of transfers for ART cycles using gestational carriers more than doubled, from 2,251 in 2006 to 4,725 in 2015. The percentage of transfers using a gestational carrier among all the transfers also increased, from about 2% in 2006 to more than 3% in 2015 (ASRM, 2015, p. 53). According to the PEW institute, 33% of American adults reported that they or someone they know has used some type of fertility treatment in order to try to have a baby.Footnote 1

Surrogacy in the United States is not regulated by Federal law. However, in 2018 the Uniform Law Commission (ULC) proposed an updated Uniform Parentage Act, which would provide States with model legislation for the expansion of access to surrogacy.Footnote 2 In 2017, Washington DC stopped the ban and in New York State, the 2015 Holyman & Paulin Child-Parent Security Act—which legalizes surrogacy contracts between intended parents and surrogate—after years of increasing debate was included in the Governor’s Budget in Spring 2020 during the COVID-19 crisis.

Major feminist resistance started in the 1980s when the first clinics were established and a peak of controversy arose around the popular case of Baby M, who was contended by her surrogate mother and intended parents (Klein, 2017): in 1986, Mary Beth Whitehead, contracted as a surrogate by William and Betsy Stern, gave birth to baby Sara, named Melissa by the couple. The birth mother was also the genetic mother of Sara/Melissa (traditional surrogacy), whose biological father was Mr. Stern. She could not bear the loss, asked to have her back and did not return. The police took the baby away, the New Jersey Court ruled termination of Whitehead’s parental rights and the Sterns received custody. Feminists and other birth mothers who had the courage to speak up about their sufferance mobilized to support Whitehead and this contributed to the ban of surrogacy in ten States. In 1988, the New Jersey Supreme Court ruled that commercial surrogacy was illegal, returned parental rights to Whitehead but custody of Baby M was left with the biological father (Klein, 2017).

Further development of assisted reproductive technology and the spread of in vitro fertilization (IVF) enabled the diffusion of gestational surrogacy in the 1990s, which progressively replaced traditional surrogacy as a less problematic (from legal and ethical perspective) option: with the removal of the genetic link between the surrogate and the baby, another Baby M case would have a low probability of happening again, the surrogate was transformed in the public eye as a simple carrier with no rights or connection over the child. With these new conditions, the surrogacy industry started to boom (Jacobson, 2016).

What is the status of the debate in the United States today? Which role do today women’s movement and feminism have in this debate? Who are mobilizing against and why? Who are in favour of surrogacy and why? Which types of initiatives do they promote and with whom do they forge alliances? Most of all, is surrogacy today a feminist cause in the United States? These are the questions leading the research journey I am going to describe in the next paragraphs.

The Research Journey: From Texas to Nation-Wide Debate

During the first part of my 3-year research project I was based at the University of Texas in Austin, Department of Sociology, which was a partner of the WoMoGeS project. I thought I was in a State that would be particularly interesting for a study on surrogacy politics and feminist mobilization. Why? First of all most of the studies on American surrogacy are undertaken in California, known abroad as a surrogacy-friendly destination for all want-to-be parents regardless of marital status and sexual orientation. Fewer studies have been focused on Texas, which is another State where surrogacy is legal, although with some more restrictions than California. In Texas, surrogacy has been regulated by law since 2003 with the introduction of Bill HB 729 in the State Family Code. The law prohibits traditional surrogacy and regulates surrogacy contracts between married couples and surrogates, with either the former or latter having to have resided in Texas for 90 days preceding the date the proceeding is commenced. The reproduction politics in Texas are remarkably conservative where pro-life groups have a significant influence on the State Policy and feminists are engaged in pro-choice campaigns. Texas is the State with the most restrictive laws on abortion, one of the highest maternal death rates and the highest levels of uninsured people (Baeva et al., 2018). In light of these premises I was expecting to find a certain level of opposition to surrogacy, at least within pro-life sectors, if not within feminists. In fact, as I will explain later, my hypothesis has been proved to be wrong.

First of all, I looked into the local press to understand the collocation and themes of surrogacy in the Texan public debate. I was also looking for activists and other discourse players to reach as many interviewees as possible in the following stage of the research. I performed keyword searches (“surrogacy” and “surrogate mother”) in The Dallas Morning News, a major newspaper in Texas, through the EBSCO databases. I found only 9 relevant articles from 2006 to 2018. On the Austin American Statesman (available on Nexis Uni database), I found a total of 18 articles from 1994 to 2018. On these 27 items, 1 is not about surrogacy but a case of a women forced to give birth after being raped by her step-father (in this article the term “surrogate mother” is referred to the victim), 3 are about cattle insemination and cloning (the term “surrogate mothers” is referred to cows), and in 2 more articles “surrogate mother” is used for grandmothers and teachers who take care of children on behalf of their real mothers. Of the remaining articles, in 7 surrogacy is only mentioned, while the focus of article is different: e.g. eggs donor, uterus transplant, information technology company policies for maternity leave, announcement of gay cruise where surrogacy is one of the topics for discussion, etc. I coded articles manually around the following fields: type of sources, country of the story, description of surrogacy, description of surrogate, description of baby, and description of intended parents.

From this task, I realized that surrogacy is not an issue of debate in Texas, and that women activists are not visible sources in press coverage. Articles tend to describe the surrogacy processes, with a focus on the medical and economic aspects and industry arrangements, personal stories, and extraordinary cases (e.g. fraud, woman gives birth to granddaughter; surrogate child killed by his dad; woman who used sperm of her dead son to have a baby through surrogacy). The sources tend to be clinics, brokers, intended parents and surrogates, and experts (lawyers, doctors, and academics); politicians and activists do not appear as sources: political aspects, legislative debate, and controversial positions in the civil society seem to be out of the radar for the Texas press. Facing these results, I decided to carry out a more thorough investigation to ascertain whether surrogacy might have been a topic of public debate prior and after the modification of the Texas Family Code (as an application of the Uniform Parentage federal Act) with the introduction in 2003 of the Bill HB 729 which regulates surrogacy contracts. I searched for the following keywords in Nexis Uni database (news contents) in the timeframe 1st Jan 2002 to 31st Dec 2003: “parentage act” and “Texas”; “family code” and “Texas” “HB 729”. I found zero articles and I came to the conclusion that surrogacy legalization in Texas has never been an issue of public debate.

However, I discovered that while carrying out this search, two proposals for the improvement in State surrogacy regulation have been advanced by two women: one is a policy analysis drafted by feminist scholar Valerie Hudson, which I will not present in this chapter but in Chap. 9, as an example of regulatory approach that aims to discourage the use of surrogacy, rather than encourage it. The other is a public call launched by former surrogate Stephanie Levesque, which I will discuss later on in this chapter when dealing with the intertwining of surrogacy with abortion in the frame of women’s autonomy.

Given that the press revealed to be an unhelpful starting point for identifying and selecting interviewees, and given that the preliminary findings were suggesting that surrogacy is not a topic of mobilization for women’s groups in Texas, I searched for possible players in the surrogacy discourse among the actors involved in the broader reproductive health and rights debate. In general, I obtained a relatively low response despite the reiteration of invitations to participate, and I also faced a few explicit rejections. I conducted 8 interviews with a feminist scholar, a representative of an infertile people association, a journalist who covered a story on surrogacy, a pro-life activist, a pro-choice activist, an operator of a family planning organization, and an anti-trafficking operator. Three of these interviewees showed to have no or very scarce knowledge of surrogacy and their organizations have never worked on the topic. The unexpected finding emerging from the press analysis and the low response in the recruitment phase led me to suppose that surrogacy is not an issue of political debate and neither an issue of feminist mobilization and policy making in Texas. Even the Stop Surrogacy Now campaign is very little known among research participants in Texas and the campaign’s coordinator confirmed that there is little or no participation from women’s organizations from the State. Most of the effort put in place by Texan women’s groups are directed to advancing the pro-choice discourse and improving women’s access to abortion, contraception, sexual and maternal health services across the State. Women in pro-life and pro-family organizations are focused, on the contrary, on making abortion less accessible and ultimately outlawing it. Surrogacy is seen, both by pro-choice and pro-life women, as a marginal issue compared to the emergency of abortion and low access to reproductive/maternal care.

Having reached such conclusions, I decided to turn my attention from Texas to understand the surrogacy debate at a National level. I looked into two main nation-wide newspapers: in the New York Times, I found only 13 relevant articles published in 2017 and in the Washington Post, I found 8 items. 6 of 21 articles were focused on the case of Senator Frank: Frank, described as pro-life and a supporter of anti-abortion policies, resigned because of accusations of having asked two of his subordinates to be surrogates for him. Another article was about the new pro-surrogacy legislation enacted in Washington DC; 1 was about American gay parents trapped in a legal limbo in Mexico after the state of Tabasco outlawed surrogacy contracts for foreigners; 1 was a love letter from an intended mother to an imaginative surrogate; 3 were about a TV series touching the topic of surrogacy with commentaries contextualized in India and the United States, and in other articles surrogacy was just mentioned as a way to have children (such as in a reportage reassuring on the adverse effects of in vitro fertilization (IVF) on children, on information technology (IT) companies parental policies, paternity leave). The sources cited in these articles are intended parents, the senator Frank, a gay Senator in New York, academics, fertility industry, and two women activists (the founder of Stop Surrogacy Now campaign and the leader feminist NGOs in pro-regulation discourse in Mexico, which we will encounter again in the next chapter).

As in the Texas case, at the national level too I noticed a certain level of resistance in participating in my study: rejections, no replies, and procrastination of appointments hindered any data collection. I interacted with 10 interviewees: two protagonists of the abolitionist campaign, two representatives of the regulatory front, a representative of anti-trafficking organization, and one of a women health organization, a pro-life author and a pro-family activist, an activist in the movement of donor-conceived children, and a psychologist working with intended parents and surrogates. Along with the interview scripts, I also included in the analysis an additional 4 texts, including a Stop Surrogacy Now statement, a Surrogacy 360 website presentation, 1 op-eds published by a feminist thinker, and a letter by an anti-trafficking organization.

Surrogacy in the Press: Empowered Surrogates, Needy Parents, and Invisible Children

The analysis of the press coverage I conducted suggests that in the mainstream press, in both the Texas and national newspapers, surrogacy tends to be portrayed as one of the available ways to have babies, a journey to parenthood, a voluntary activity for surrogates (they “wish” or “agree” to become surrogates), as well as altruistic, emotionally, and ethically rewarding, as a technological process that enables heterosexual and same-sex couples and infertile women to accomplish their desire of building families, a process with an emotional and financial load, but also as a booming business with some ethical problems. Surrogacy is described as womb renting, exploitation, and an unhealthy practice only in one quote by the Stop Surrogacy Now leader.

Surrogates in the press are described as American women who sacrifice their bodies for others, strong and healthy to be able to face multiple pregnancies and medical treatments, carefully selected by agencies on the basis of their psychological and physical well-being; they tend to be portrayed as family women, stable in their family life, and most of all they come across as free agents of choice: they decide independently to become surrogates. In contrast, in articles talking about surrogacy in Asia and Mexico surrogates are described as poor and vulnerable. Intended parents are portrayed as couples (heterosexuals or homosexuals) and as women unable to carry out a pregnancy (because of problems in their reproductive system) and with a strong desire and determination to have children to the extent of investing financial means and engaging in the whole process including being present during pregnancy and at the birth. They are also described as victims of restrictive laws or as “desperate” due to their infertility.

The child remains in the background in all the analysed articles. When the child is mentioned, it is described during the pregnancy (through sonogram) and at birth: it is healthy, cute, and adorable, it is the biological child of the intended parents. The relationship between the parents and the surrogates receives more attention than the maternal–foetus relationship, which is transformed into an endeavour, a performance of the surrogate who does her job well, but she does not become too attached to the foetus since it does not belong to her.

The Main Actors of the American Civil Society in the Surrogacy Debate

Internationally, two main fronts seem to come forward in the surrogacy discourse and policy making (Maniere, 2017). This picture applies also to the United States: there is an abolitionist front, which sees surrogacy as a violation of human rights and commodification of women and children, who are deprived of the natural maternal–foetal bond. On the other hand, there is the so-called regulatory or reformist front which sees surrogacy as an opportunity to achieve the individual desire of having a baby and at the same time to participate in others’ reproduction process, an opportunity that should be guaranteed in the framework of reproductive freedom/rights, a possibility that should be regulated to enable health, and rights protection for all the subjects involved in surrogacy arrangements. In the reformist front, there are those in favour of surrogacy, as an opportunity for family formation and reproductive work for women, and those who are not in favour of surrogacy but yet adopt a pragmatic approach and disagree with abolitionist initiatives.

During my field-work, I identified the following leaders of the surrogacy expert debate and representatives of these two main approaches to surrogacy in the United States: the leader in the prohibitionist front is the Stop Surrogacy Now campaign, while the main voices in the regulatory front are the Center for Genetics and Society (CGS), which is working in partnership with Pro-Choice Alliance for Responsible Research (PCARR) and Our Bodies Ourselves (OBOS). These are not the only organizations working on the topic, but just the ones I identified as significant reference points in a study on surrogacy politics and mobilization and the ones I decided to focus on more closely.

On the abolitionist front, it is also worth mentioning the Coalition for Anti Trafficking of Women (CATW), which frames surrogacy as a form of reproductive trafficking of women. The organization presented a petition to convince Congresswoman Paulin to stop the bill, and harshly criticized the decision of Governor Andrew Cuomo who legalized commercial surrogacy in New York, when during the COVID-19 pandemic the Kiev case was showing to the entire world “the horrors of commercial surrogacy” and by ignoring testimonies and reports on the harms of surrogacy.Footnote 3

On the regulatory front, another active organization is the Center for Reproductive Rights (CRR), which however I could interact with only after completion of my work in the United States. CRR developed in consultation with a variety of professions, including social researchers, advocates, and attorneys, as well as surrogates, human rights-based guiding principles on compensated gestational surrogacy, aimed at providing a resource to lawmakers in developing legislation to legalize and regulate gestational surrogacy. CRR also engages in advocacy at a global level: for example, it recently submitted an “Expression of concern” to the UN Special Rapporteur on the Sale and Sexual Exploitation of Children written jointly with SAMA and GIRE, which are the main feminist NGOs engaged in surrogacy advocacy, respectively, in India and in Mexico. Their concern is that “framing the practice of compensated surrogacy as sale of children fails to acknowledge the reproductive labour of persons acting as surrogates and implies that human rights adhere before birth, thereby undermining the current human rights framework”. This frame, according to CRR and partners, potentially criminalizes the practice and “mischaracterizes and misapprehends the motivations of intended parents and the women who provide gestational surrogacy services” (CRR et al., 2019, pp. 3–4).

The Stop Surrogacy Now campaign was founded in California in 2015 as an initiative of Jennifer Lahl, founder and president of the Center for Bioethics and Culture Network (CBCN), with 25 years of experience as a paediatric critical care nurse, a hospital administrator, and a senior-level nursing manager. The initial signers included about 100 individuals and 16 organizations from 18 countries who “shared concern for women and children who are exploited through surrogacy contract pregnancy arrangements” and believe that “surrogacy should be stopped because it is an abuse of women’s and children’s human rights”, and “is indistinguishable from the buying and selling of children”.Footnote 4 Today the campaign represents over 20,000 people from all around the world and 22 NGOs. Stop Surrogacy Now’s main goal is to ban surrogacy globally and this is pursued through an educational approach: to raise awareness on the unethical aspects and health risks of surrogacy. This campaign is not a feminist campaign. It tends to be portrayed as conservative, although endorsers encompass a variety of voices including feminists, pro-lifers, bioethicists, human rights activists, surrogates, and also gay men and women who disagree with the LGBTQ movement endorsement of surrogacy. Recently the campaign has expanded its networking to the natural childbirth movement in light of the common interest to value the vital connection between mother and child during pregnancy. A more recent strategy of Stop Surrogacy Now is to grow by adding more NGOs than individual signatories, since NGOs can be active as an organized group in the global debate on surrogacy. Stop Surrogacy Now is also a catalyser for the mobilization of former surrogates, who are making their voice heard about the wrongdoings of the surrogacy industry, the risks and sufferance in their experiences in the field.

The campaign influences policy makers in the United States and internationally through public conferences around the world, along with the production and screening of documentaries such as Eggsploitation (2009) and BigFertility (2018), books, press releases, and the divulgation of scientific research, monitoring of the changes in legislations, petitions to stop legalization, and networking with NGOs and activists in different countries. The campaign has been successful in mobilizing notorious feminists in opposition towards the legalization of surrogacy in the state of New York, and last year was successful in pulling votes away, so Governor Cuomo was never given the opportunity to pass the Bill. As mentioned earlier, the legalization was achieved in April 2020 through the expedited inclusion of the Bill in the Governor’s Budget during the COVID-19 emergency (therefore with no debate). Recently Stop Surrogacy Now helped draft and provide expert testimony for a Bill in South Dakota that would prohibit commercial surrogacy (but allow altruistic surrogacy). The campaign faces an uphill battle on the legislation and according to her leader has less influence and financial capacity than those who advocate surrogacy legalization, such as the LGBTQ community.

By networking with NGOs in other countries, the campaign contributes to raise expert knowledge on surrogacy and strengthen the influence of these groups in policy making. Its popularity seems to be higher in Europe—where it is also a trigger for the mobilization of women groups at a country level, for example, in Sweden, Spain, Italy, and France—than in the United States where it was created. It also tries to influence supranational policy makers by having the campaign’s leader at side events organized by NGOs at UN meetings such as the New York Commission on the Status of Women (CSW) in 2018 and the 40th Geneva UN Human Rights Council.

CGS is a non-profit organization based in California, established in 2001, and engaged in promoting the responsible use and governance of genetics and assisted reproductive technology. CGS cannot be considered an expression of the American women’s movement, although it collaborates with a few feminist groups. CGS has elaborated a set of recommended principles and standards for international commercial surrogacy: it addresses the rights of subjects involved in surrogacy arrangements (surrogates, intended parents, egg providers, and children) and requirements for clinics.

These recommendations are available on the Surrogacy360 website,Footnote 5 which is an informative project conceived by CGS together with OBOS, but now run by CGS and supported by international funds such as from the Open Society. OBOS is a feminist organization founded in Boston in 1969 and since then has provided evidence-based information to the public on pregnancy, birth, and infertility, all around the world and advocated for LGBTQ rights; in the last 20 years, OBOS has also been actively engaged in emerging issues in assisted reproduction, genetics, and public health, and paid particular attention to the possible risks to women’s health and their potential impact on future generations of children. The website aims to provide intended parents with information about the health questions, human rights considerations, red flags, and ethical challenges that cross-borders commercial surrogacy poses. For example, aspiring parents are warned that between them and surrogates “there is usually an unequal power relationship […] due to disparities in the economic position and in access to social and other resources” and that “emphasizing altruism often serves to downplay the reality that surrogates in commercial arrangements are engaging in work and must be afforded just and fair conditions”.

CGS also partners with PCARR (which is a coalition of reproductive rights and justice advocates, bioethicists, academics, and community leaders working to promote social justice in biomedical research from a women’s rights perspective, who are strongly committed to abortion rights but have diverse positions on surrogacy) on the Assisted Reproductive Technologies (ART) Working Group, which is composed of 150 scholars and activists mostly in the United States. CGS monitors, analyses, and provides State legislators with inputs on changes in the language used in legislations, and it influences policy makers by writing letters to State legislators with joint initiatives with its partners PCARR-ART Working Group. The goal is to raise issues especially around surrogates’ rights that need to be taken into consideration while drafting or discussing Bills. To do so, CGS and partners provide policy makers with inputs on how to change the language of their Bills.

CGS works also internationally: it recently encouraged partners to comment on legislations in Canada and United Kingdom; in 2018, it participated in a conversation organized by the British Journal of Reproductive Health Matters where the Center brought the reproductive justice point of view and instances on the safeguard for surrogates; in 2014, it organized with the International Institute of Social Studies in the Hague the track of the meeting on the International Forum on Intercountry Adoption & Global Surrogacy (ICA Forum).

Framing the Problems and the Solutions

Whereas the position of the abolitionists is clear-cut, individuals and groups included in the reformist front are not necessarily in favour of surrogacy but yet adopt a pragmatic approach. “The horse is out of the barn” is a recurrent statement among those who embrace a reformist approach. They reject the abolitionist solution in all matters of private life (family, sexuality, etc.) and privilege a liberal approach that guarantees reproductive rights to infertile and same-sex couples. Among reformists, there are also more radical voices that defend the legalization of surrogacy as a matter of equal access to reproductive technology and right to family formation. The fundamental difference between those who advocate for the prohibition of surrogacy and those who believe that surrogacy should be regulated is that while the former looks at surrogacy as wrong and unethical per se, the latter aims to prevent unethical practices in the way surrogacy is performed.

Each front identifies different problems, which I classify as diagnostic frames, and suggests different solutions or prognostic frames (Benford & Snow, 2000). Some frames are shared by both: for instance, it emerges that the two fronts look at surrogacy as a consumeristic practice in which the health of women (surrogates and egg donors) and children as well as the freedom and dignity of surrogates are at risk due to the unregulated and unethical legal and medical procedures put in place by clinics and agencies. In addition, both fronts feel the need for more research, follow-up studies on the well-being of surrogates and children, as well as more information for the wider public and people who consider to step into the practice.

However, while according to reformists there are chances to improve regulations and control of surrogacy actors, for abolitionists the whole industry should be shut down by law. Another difference is that while in reformist discourse intended parents are portrayed as victims of infertility and of unregulated business that hinder their access to reproductive technology (e.g. recurrent use of the passive form of the verb “to deny” such as they are denied travel documentation, information, etc.), in abolitionist discourse, the primary victims are the women and children.

The fundamental distance between the two discourses is the different status given to the maternal–foetus bond: in abolitionist discourse, the surrogate is represented as the mother insofar pregnancy and motherhood belong naturally to the same person; the deprivation of the bond that is established during the pregnancy is a harm that in any surrogacy practices, no matter how well they are regulated, remains non-avoidable. This aspect marks the bottom-line for any attempt to reconcile the visions of the two fronts.

Diagnostic frames applied by abolitionists:

  • surrogacy is a system of exploitation (unethical, profit-driven, unregulated, and unethical industry) of vulnerable women, it implies a reduction of women’s autonomy and freedom during pregnancy as in slavery;

  • surrogacy is a form of commodification of women (disposable) and children (baby-buy), and a human rights violation;

  • surrogacy is a product of liberalism and capitalism applied to life;

  • surrogacy implies hazards for women and children’s health and lack of information;

  • surrogacy implies deprivation of mother–foetal bond;

  • in surrogacy there is an inequality of the power between the surrogates and intended parents;

  • surrogacy is a result of gender inequality and patriarchy;

  • surrogacy is supported by a spreading culture of the “right to have babies” and by a conservative pro-family mindset.

Prognostic frames applied by abolitionists:

  • surrogacy should be outlawed through national and international laws;

  • there is need for cultural change and for more diffusion of information about the details of surrogacy, medical literature and surrogacy cases that have gone wrong;

  • follow-up studies on surrogates and children should be conducted by clinics and independent researchers;

  • social movement of surrogate children will come forward in the future and will show the wrongdoing of surrogacy on children;

  • restrictive regulations should be promoted to discourage the practice.

Diagnostic frames applied by reformists:

  • in surrogacy, women’s health is at risks because of medical and industry practices, such as multiple embryos implantation, hindered contacts between the surrogates and intended parents, denied disclosure of information on the risks and rights;

  • intended parents and surrogates are not adequately informed on the health risks and rights;

  • in developing countries, surrogates’ freedom is restricted, they are exploited because vulnerable;

  • world-wide heterogeneous regulations make intended parents, surrogates, and children’s rights less achievable and more uncertain;

  • surrogacy is the result of liberalism and consumerism;

  • surrogacy is hostage of a polarized debate.

Prognostic frames applied by reformists:

  • medical regulations, such as the prohibition of multiple embryo implantation and mandatory testing for all gamete donors, should be introduced;

  • for starting surrogacy agencies stricter requirements should be required;

  • mechanism of supervision and control on surrogacy industry actors should be created;

  • legal and medical counselling for intended parents and surrogates and mechanisms to ensure fully informed and free consent (contracts in surrogate’s mother language, for example) should be guaranteed;

  • more research on health and well-being of children and surrogates should be conducted.

Low Engagement of American Women’s Movement: The Problem with Autonomy

Surrogacy is still marginal in the American women’s movement, but in recent years the attempts to legalize commercial surrogacy in New York have increased feminists’ concern and trigged their engagement. Although sometimes American feminists make their voice heard with publications, petitions, and speeches, pro or against State legalizations, surrogacy has not reached neither the status of cause nor the status of working issue as, for example, abortion, violence against women, sexual harassment, breast cancer, etc. (Lesley, 1995; Ruzek & Becker, 1999).. On the other hand, surrogacy has become the core issue of the ad-hoc transnational campaign Stop Surrogacy Now, which, as already mentioned, cannot be considered fully an expression of the women’s movement, although it is predominantly endorsed by women. If we apply the definition of women’s movement given by Mazur and colleagues already mentioned in Chap. 2, the campaign is not a “collective action by women organized explicitly as women presenting claims in public life based on gendered identities as women” (Mazur et al., 2016, p. 657). Although some of the initial signatories of the campaign are feminists, the campaign cannot be regarded an expression of the feminist movement insofar the campaign goals are not those of changing “the status of women and challenge women’s subordination to men and the gender hierarchies that sustain it” (Mazur et al., 2016, p. 653). As already clarified earlier, the composition of the campaign’s supporters is relatively heterogeneous.

Although main feminist organizations do not have any public position on the topic, individual members publicly may express opinions and sign petitions. This applies to National Organization for Women (NOW), one of the key feminist organizations in the country: at a central level, the organization seems not to come forward with a unitary position but one of former NOW board of directors, Kathleen Sloan, publicly condemned the practice as exploitative and dangerous for women and children with the following strong words: “commercial surrogacy is a predatory, profit-driven industry that preys on marginalized women, creating a breeder class for the wealthy, be they heterosexual or homosexual. It subjects women to life-threatening health risks to produce custom-made children and children being intentionally severed from genetic and biological sources of identity—human rights be damned. In essence, it is the ultimate manifestation of the American neoliberal project of capitalist commodification of human life to create profit and fulfil the narcissistic desires of an entitled elite”.Footnote 6 Moreover, NOW New York chapter endorsed the Holyman & Paulin’s Bill, by stating that existing law, “which bans enforceable surrogacy arrangements, is premised upon old medical technology—when the surrogate was the genetic mother of the child” and is no longer appropriate since “now people are building their families through the common and widely accepted practice of gestational surrogacy, where the carrier has no genetic connection to the child”.Footnote 7

Another example is the National Women Health Network (NWHN): the organization today does not engage in surrogacy activism, neither pro nor against, and does not agree with the abolitionist demand because it endangers the autonomy of women. However, back in the 1990s, NWHN publicly described surrogacy as a form of commodification of women and in the early 2000s, one of organization’s representatives spoke about the market forces and the dangers for women’s health of surrogacy and egg retrieval. However, NWHN does not agree with the abolitionist demand because it endangers the autonomy of women.

Pro-life women and pro-life obstetricians do not engage in the issue and/or rejected to participate in the study. Only one family activist and one Catholic author participated in the study and expressed their critical stance against surrogacy, although they are not engaged in any ad-hoc projects.

Some organizations complain about the lack of human and economic resources as a cause for their disengagement from surrogacy activism and their lack of expertise on the issue. However, I think that such a low engagement deserves a deeper reflection than one of lack of resources. The reflection that I will attempt in the next paragraphs will integrate knowledge on the representation of surrogacy and its social acceptance in the United States, the theoretical framework of feminist mobilizations on reproductive rights, and ideological conflicts with pro-life groups.

First of all, it is worth recalling from the introductory paragraphs of this chapter that the public debate on surrogacy in the United States, as well as main feminist resistance and mobilization, started back in the 1980s when the first clinics were opened and a peak of controversy inflamed around the Baby M case. However, with the progressive shift from surrogate motherhood to gestational surrogacy in the 1990s, and thus with the removal of the genetic link between the “carrier” and the child, the practice has been repositioned in the public debate from “baby selling” to a way of family formation enabled by technological progress and generosity of women who are willing to share their gestational capacity with those who desire a baby but cannot naturally have it. Industry discourse has also contributed to portraying surrogacy as unproblematic by portraying surrogates as nice women happily making autonomous decisions to help other women and couples.

This representations seems to perfectly fit with the dominant guiding principle of American feminist advocacy on body issues, women health and reproduction, which is one of individual autonomy. More specifically, feminists tend to interpret women’s autonomy as the freedom and right to dispose and decide fully on her own body with no interference whatsoever (from the State or from men) (Petchesky, 1995).Footnote 8 The woman’s autonomy framework has been applied intensively to affirm women’s right to decide on their sexual and reproductive life regardless of family pressures and dominant patriarchal social norms and has been the master frame of abortion campaigns (Esacove, 2004; Jaggar, 1973). Abortion continues today to be the cornerstone of the American feminist fight for the recognition of woman’s autonomy, and in recent years of Trump’s administration, the feminist concern and mobilization against a perceived backlash in women’s rights has even intensified (Meyer & Tarrow, 2018). In this context, I think that any critique against surrogacy is seen as an attempt to limit the claimed autonomy of women to decide over their bodies: feminists, who still today need to fight for access to safe and legal abortion, might be very careful not to make a misstep in favour of their opponents by admitting that individual autonomy on body and reproduction can, at times, be limited. During the protests against the nomination of Judge Brett Kavanaugh at the Supreme Court, feminist protesters were wearing red-and-white costumes from the Handmaid’s Tale, Margaret Attwood’s novel in which an imaginative future class of women are forced to breed for a conservative male class. The novel is often cited as a metaphor of surrogacy but feminists recontextualized the symbol to protest, nor against surrogacy, but against the threat to women’s abortion rights, which Kavanaugh represented.

Having said that, it is worth noting how during a surrogacy pregnancy the “woman’s right to choose” on the foetus is not guaranteed at all. Taking into consideration the following case from Texas. Stephanie Levesque is a surrogate who gave birth to a child despite his biological parents asking her to abort because of a heart defect discovered at week 16 of the pregnancy. Although Texas law states that no gestational agreement can “limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo”, and this provision should prevent forced abortion, in reality surrogacy agreements limit the woman’s autonomy and her power to take decisions over the embryos and the foetus. Levesque on her blog ( elaborates on this point and underlines that surrogates who refuse to implement the intended parent decision to have the foetus aborted can be sued and asked to pay a financial reimbursement. This concretely hinders the possibility of the woman to exert her right to decide on her pregnancy termination. She suggests a correction in the Woman’s Right to Know Act (HB 15/SB 835), which provides that, before having an abortion, women must undergo a sonogram and wait 24 h. According to Levesque, the intended parents should also attend the sonogram. She suggests that agencies represent not only the interest of the intended parents but also those of the surrogate.Footnote 9

Feminists who engage in the surrogacy debate are aware that the status of women’s right to choose during pregnancy for others is questioned. This problem could be taken up either as a terrain for advocating to stop a practice that provides for the suspension of this right, and as a ground upon which to make requests for regulation. The second option is taken by OBOS that recommends that women have “agency in decision-making regarding medical interventions—including termination (or continuation) of a pregnancy—freedom of movement, and daily activities”. OBOS goes further and recommends that “parentage should be assigned at birth to the gestational mother—as one of the legal parents—and remain in place for 72 h, when parental rights would be relinquished by her”. This recommendation is based on the observation that “a pre-birth judgment of parentage, is unworkable, as there is legally no child until birth. Granting the intended parents rights to a fetus (i.e., supporting foetal personhood)” collides with “the right to abortion”.Footnote 10 Through these recommendations, OBOS takes the opportunity to reaffirm the women’s right to choose and to highlight the distance from pro-life groups that consider embryos and foetuses as living subjects with human rights.

Why is surrogacy not a field of activism for the latter? To be honest, not so much the low engagement of feminists, but that of pro-life activists, men and women, were absent players in the surrogacy debate and politics, was the aspect that most astonished me during the exploration of the American scene. Why do they not oppose a reproductive practice that commonly implies the implantation of multiple embryos and subsequent selective reduction (according to the genetic parents’ preferences and decisions)? Is the pro-family/natalist imperative prioritized? A pro-life activist interviewed for this study said that on the basis of their fight against abortion as well as their endorsement of the adoption of frozen embryos produced in surplus during IVF cycles is their wish to protect the dignity of embryos. According to a report in Christianity Today,Footnote 11 the concern to give frozen embryos a chance to transform themselves into children is one of the reasons why couples and surrogates who believe in the Christian faith and are opposed to abortion, choose the path of surrogacy. The disengagement of pro-life groups from the movement that opposes surrogacy probably mirrors the fact that in the United States among surrogates there are also Christian believers who are willing to use their reproductive capacity to bless others. Contributing to the silence of pro-life women might be also the fact that surrogacy is not strange as a family formation method for a few prominent conservative and anti-abortion politicians (see, e.g., The case of Senator Frank reported in the press analysis) and that the coalition supporting the legalization of surrogacy in New York is also composed of religious (Christian-based) groups.

To conclude, from this case study I draw the hypothesis that the radicalization of the debate on abortion might be a crucial hindering factor for women’s mobilization on surrogacy. Although current literature on social movements shows that single-issue coalitions of groups that disagree on other different topics have the potential to achieve concrete results, the fear of being accused of inconsistency may prevail, where the consistency measurement is built on a conceptual and political dichotomy (Whittier, 2014). As one of my interviewees said, if you are progressive, pro-women’s rights, pro-choice, pro-abortion, you are expected to be also pro-surrogacy. It follows that if you are against surrogacy, you struggle to be identified as progressive and are possibly identified as being anti-choice, and thus associated to conservatives who oppose abortion and gay rights.