Gestational surrogacy, a contractual arrangement between commissioning parents and the woman who carries the baby in pregnancy (the birth mother), is big business. Yet it remains unregulated in the United States at the federal level. Popular and academic discourse often view surrogacy arrangements through the lens of freedom of contract. This Article will show that surrogacy does not properly belong in the realm of freedom of contract, but rather in the limitation to freedom of contract. Human flourishing and the common good require both the affirmation and limitation of that freedom, given that parties to a contract are rational beings, but imperfectly so. Although it is a deep-seated human desire to have a genetic child, the absence of whom can be deeply disappointing and painful, surrogacy contracts inherently dehumanize the birth mother and child. After weighing the competing interests and costs in surrogacy, this Article concludes that surrogacy should be prohibited in the United States as against public policy that is oriented toward human flourishing, or toward being more fully human.
INTRODUCTION I. CONTRACTS AND PUBLIC POLICY A. Tension Between Freedom of Contract and Public Policy B. Contracts and Human Flourishing II. WHAT IT MEANS TO BE HUMAN III. SURROGACY AND DEHUMANIZATION A. Surrogacy and the Birth Mother 1. Important Bonds Between Birth Mother and Child Are Trivialized 2. Inalienability of the Womb and Gestational Services 3. The Large Print Giveth Not, and the Small Print Taketh Away 4. Problems with Consent 5. Risks, Known and Unknown 6. Surrogacy Dehumanizes the Birth Mother B. Surrogacy and the Child 1. Children, Manufactured 2. Consent? What Consent? 3. Risks, Known and Unknown 4. The "Right To Procreate" ... For Whose Benefit? 5. Surrogacy Dehumanizes the Child IV. CONCLUSION INTRODUCTION
A gestational surrogacy contract is an arrangement between commissioning parents and the woman who carries the baby in pregnancy, the birth or gestational mother (sometimes called the surrogate mother). (1) The baby is conceived through in vitro fertilization ("IVF") using the genetic material of the commissioning parents, a donor, or a combination thereof, and subsequently implanted in the birth mother's womb. (2) She then carries the baby to term, gives birth to the baby, and, under the contract, hands over the baby to the commissioning parents, having no right or responsibility to the child. (3) In exchange, the birth mother is paid for her services. (4)
Such contracts are big business: an estimated $6 billion global industry, (5) $4 billion in the United States alone. (6) It is on the rise; sought by couples with infertility issues, singles, (7) and same-sex couples (8)--especially in light of the redefinition of marriage by the Supreme Court of the United States in Obergefell v. Hodges. (9)
Often, the arrangement is viewed through the lens of freedom of contract. (10) Indeed, that is how California's highest court decided to interpret the gestational surrogacy arrangement at issue in Johnson v. Calvert (11): the parties' intent governed. The arrangement to which the commissioning parents and the birth mother consented before pregnancy and birth, in their freedom to contract with each other, controlled. (12)
The practice is unregulated at the federal level, (13) and disagreement among the states has led to "jurisdictional chaos." (14) Indeed, the surrogacy industry has been called the "Wild, Wild West" by a prominent surrogacy attorney, headed to a federal prison for her involvement in baby-selling schemes masquerading as legitimate surrogacy arrangements. (15) The disbarred attorney said that she was but "the tip of the iceberg" with regard to the abuses of the surrogacy industry in the United States. (16) She was not alone in the baby-selling ring: another high-profile surrogacy attorney and a surrogate mother were also part of the operation. (17) A surrogacy agency owner, sentenced to imprisonment for fraud, (18) put it this way: "Here is a little secret for all of you. There is a lot of treachery and deception in I.V.F./fertility/surrogacy because there is [sic] gobs of money to be made." (19)
The current landscape of patchwork surrogacy laws across the states lends itself to jurisdiction-shopping for surrogacy. (20) California, for example, is becoming the surrogacy capital of America due to its lax laws on surrogacy. (21) Nationally, the United States is the number two destination for surrogacy worldwide, second only to India. (22) Foreigners commission an estimated forty to fifty percent of surrogacy arrangements in the United States. (23)
As society increasingly views consent as the ingredient that legitimatizes all kinds of arrangements and relationships, be it for good or ill--indeed, much of the discourse in law journals argues for surrogacy based on the parties' consent in freedom of contract (24)--a reasoned articulation as to why some arrangements are not proper and against public policy, regardless of consent, is called for.
This Article will show that commercial surrogacy arrangements do not properly belong in the realm of freedom of contract, but rather in the limitation to freedom of contract. Human flourishing and the common good require both the affirmation and limitation of that freedom, given that parties to a contract are rational beings, but imperfectly so. Specifically, with regard to surrogacy, although it is a deep-seated human desire to have a genetic child, the absence of whom can be deeply disappointing and painful, surrogacy contracts inherently exploit the birth mother and the child. After weighing the competing interests and costs of surrogacy against each other, this Article concludes that surrogacy should be prohibited in the United States as against public policy that is oriented toward human flourishing, or toward being more fully human.
Part I of this Article explores the tension between freedom of contract and public policy and the relationship between contracts and human flourishing in the tradition of natural law. Part II examines what it means to be human in the context of surrogacy. Part III analyzes how surrogacy affects and dehumanizes the birth mother and the child. The Article concludes by situating surrogacy within the larger context of freedom of contract and its limitation in contract law, public policy, the common good, and human flourishing.
This Article is focused on commercial gestational surrogacy contracts in the United States, (25) wherein the birth mother is paid by the commissioning parents (26) to carry a child conceived using the genetic material of the commissioning parents, a donor, or a combination thereof (27) through the use of IVF, (28) as distinguished from traditional or complete surrogacy, wherein the birth mother is also the genetic mother of the child. (29)
This Article does not focus on traditional surrogacy, as it is increasingly rare. (30) As far back as 2003, gestational surrogacy made up ninety-five percent of surrogacy arrangements in the United States. (31) The focus on commercial surrogacy in this Article also excludes altruistic surrogacy, wherein the birth mother carries the child at no cost to the commissioning parents. (32)
CONTRACTS AND PUBLIC POLICY
Tension Between Freedom of Contract and Public Policy
At the heart of the issues surrounding surrogacy is the tension between freedom of contract and public policy oriented toward human flourishing. People are free to enter into contracts, and generally speaking courts respect freedom of contract and enforce them. (33) People generally enter into a contract because the agreement improves life in some way; indeed, contracts are important to human flourishing. (34) Thus it is good for the state not to stand in the way of the fulfillment of such arrangements.
But the law has long recognized that certain contracts are unenforceable as against public policy; certain things are not properly predicated on the parties' consent in their freedom of contract. (35) An obvious example is contract killing. (36) Another more fact-specific example is a contract involving unconscionability. (37) The question of interest then is what makes certain contracts belong not in the great open space of freedom of contract, but properly outside the boundaries to that freedom.
Contracts and Human Flourishing
Thomas Aquinas states that law is "an ordinance of reason for the common good of a [complete] community, promulgated by the person or body responsible for looking after that community." (38) He adds that law "is simply a sort of prescription of practical reason in the rider governing a complete ... community." (39) This Section will sketch the relationship between law (in particular, contract law), justice, the common good, and human flourishing in the tradition of natural law.
Human flourishing--the well-being of individuals and the communities they form--has to do with reasonableness, which Aquinas defines as doing and pursuing what is good and avoiding what is evil. (40) Indeed, for Aquinas, man's telos is fulfilling the divine calling of flourishing (beatitudo or felicitas), by steps he has freely chosen for himself. (41) Flourishing is the "fulfilment of the nature," that is, the fulfillment of the capacity of reason and freedom with which each human being is created. (42)
There are basic goods in life that contribute to human flourishing: life and health, marital-procreative union, friendship, knowledge, play, aesthetic appreciation, skillful performance, religion, and practical reasonableness. (43) Each good is basic in that it is common or universal ("good for any and every person" (44)), an intelligible end in and of itself, and intrinsically valuable, (45) or self-evidently known: "[I]t is better to be reasonable than to be unreasonable." (46) Aquinas calls basic goods indemonstrabile and per se notum, that is, "known in themselves and not through the mediation...