The Legalization of Emotion: Managing Risk by Managing Feelings in Contracts for Surrogate Labor

• Date: 01 March 2015
• Published date: 01 March 2015
• DOI: http://doi.org/10.1111/lasr.12125

The Legalization of Emotion: Managing Risk by

Managing Feelings in Contracts for Surrogate Labor

Hillary L. Berk

Despite a rich literature in law and society embracing contracts as exchange

relations, empirical work has yet to consider their emotional dimensions. I

explore the previously unmapped case of surrogacy to address the interface

of law and emotions in contracting. Using 115 semistructured interviews and

content analyses of 30 surrogacy contracts, I explain why and how lawyers,

with the help of matching agencies and counselors, tactically manage a variety

of emotions in surrogates and intended parents before, during, and after the

baby is born. I establish that a web of “feeling rules” concerning lifestyle, inti-

mate contact, and future relationships are formalized in the contract, coupled

with informal strategies like “triage,” to minimize attachment, conflicts, and

risk amidst a highly unsettled and contested legal terrain. Feeling rules are

shared and embraced by practitioners in an increasingly multijurisdictional

field, thereby forging and legitimating new emotion cultures. Surrogacy offers

a strategic site in which to investigate the legalization of emotion—a process

that may be occurring throughout contemporary society in a variety of

exchange relations.

Technically, the only criterion for a surrogate mother is a

healthy uterus, and the only criterion to create a family is express-

ing the intention to parent in a contract, along with an ability to pay

for the “exchange.” Where deemed legal, surrogacy contracts are

framed as dispassionate transactions for services and labor (Culliton

v.Beth Israel MA 2001; Johnson v.Calvert CA 1993; U.P.A. §801(e)

2000, 2002; 750 ILCS 47). Once technology separates the baby

from the pregnancy, “women are no longer necessarily the mothers

of the children they carry within,” they are solely “a contractual

This work was supported both by a National Science Foundation Doctoral Dissertation

Research grant, Award #1123500, and the Berkeley Empirical Legal Studies Fellowship.

The author is grateful to the four anonymous reviewers for their time and constructive

feedback, and especially to Lauren Edelman, Calvin Morrill, Kim Voss, Kristin Luker,

Kathryn Abrams, and Joan Hollinger for extensive support and insights. Further acknowl-

edgement goes to Rosann Greenspan, Jennifer Carlson, Margo Mahan, Diane McKay,

Deborah Klein, and Barbara Ayares. This research would not be possible but for each of

the engaged and willing participants in the study.

Please direct all correspondence to Hillary L. Berk, J.D., Ph.D., Legal Studies Postdoc-

toral Fellow, Berkeley Law,University of California Berkeley, 2240 Piedmont Ave., Berke-

ley,CA 94720-2150; e-mail: hberk@berkeley.edu.

Law & Society Review, Volume 49, Number 1 (2015)

V

C2015 Law and Society Association. All rights reserved.

143

agreement” (Rothman 1994: 264). But is a surrogate mother really

“just the oven,” free from emotional attachments, delight, or resent-

ment, even when she is motivated to assist a desperate, infertile

couple willing to pay for her trouble? (Hatzis 2003).

Despite a rich literature in law and society embracing con-

tracts as exchange relations, empirical work has yet to address

their emotional dimensions. Surrogacy contracting offers an ideal

context to highlight this oversight. Emotions are culturally and

discursively experienced through individuals embedded in social

structures (Bandes 1999; Turner and Stets 2005). In her study of

how amniocentesis changes the experience of motherhood, Bar-

bara Katz Rothman details how women awaiting test results man-

age to keep anxiety under control, at a cost. A pregnant woman

“may feel she has to keep distance, emotionally and pragmati-

cally, from the baby,” and thus experiences “a very tentative rela-

tionship to the fetus” (Rothman 1993: 102–103). In surrogacy,

that “tentative” relationship between mother and child turns to

certainty of separation, requiring more emotional “distance.”

Why and how do lawyers, with the help of other professionals,

manage the complex range of emotions experienced by surro-

gates and parents during and after contract performance?

In this article, I draw on 115 in-depth interviews and content

analyses of 30 contracts to address the interface of law and emo-

tions in exchange relations. Additionally, I map a previously

unknown terrain for the very first time: surrogacy contracting. I

unpack the legal interests, risks, and social relationships that are

situated at the nexus between a surrogate’s womb and the hopes

of “intended” parents who contract for her labor within a

conflicting legal landscape. I explain why and how lawyers who

specialize in assisted reproduction, with the help of matching

agencies and counselors, anticipate and tactically channel a variety

of emotions in surrogates and intended parents before, during,

and after the baby is born. I establish that a web of “feeling rules”

1

formalized in the contract along with informal strategies like

“triage” are intended to minimize attachment, conflicts, and risk

amidst a highly unsettled and nascent terrain. These rules and

strategies are then shared and embraced among reproductive pro-

fessionals, forging new emotion cultures. However, I show that

feeling rules go above and beyond rationalized risk assessments.

Surrogacy offers a strategic site in which to investigate how

law shapes feelings, and conversely, how feelings shape law. I

introduce this phenomenon as the legalization of emotion, a

1

Arlie Russell Hochschild coined the term “feeling rules” in her groundbreaking

study of emotional labor,The Managed Heart (1983), detailed in the review of the literature.

144 The Legalization of Emotion

consequential process that may be occurring throughout contem-

porary American society in a variety of exchange relations.

Background on Reproductive Technology and Surrogacy

Surrogacy contracting offers a unique opportunity to under-

stand how law operates to manage feelings for a variety of rea-

sons. First, surrogacy is a process whereby a woman bears a child

for another person, typically in exchange for consideration by

contract (Kindregan and McBrien 2011: 151; U.P.A. §801(e)

2002). In traditional surrogacy, the surrogate uses her own egg

and thus, is genetically related to the child she gestates (Id.). A

gestational surrogate uses the egg of another person, a third-

party “donor,” to birth a child (Id.). Scientific and medical

advancements like egg donation, the cryopreservation of

embryos, and success in gestational surrogacy spurred private

bargaining and use of technologies in the absence of federal reg-

ulation (Crockin and Jones 2010). Ethical debates on the com-

mercialization of life through gamete sales and contract

pregnancy persist but have not halted the boom in the family for-

mation market (Ertman and Williams 2005; Goodwin 2010). A

sharp rise in demand is fueled by increases in both biological and

social infertility, as well as trends in gay parenting (Id.).

Second, within the United States, jurisdictions are still divided

and undecided on the legality of paid surrogacy, which continues

to be prohibited in several states and most countries around the

globe (Lewin 2014). Some states prohibit commercial surrogacy

as void for public policy against “baby bartering” and the

detached “manufacture” of children (In Re the Matter of Baby M

1988; Goodwin 2010; Markens 2007). These jurisdictions treat

surrogacy as an invalid attempt to circumvent state adoption

laws, which provide a grace period for a remorseful birth mother

to rescind termination of her parental rights. Mothers are norma-

tively expected to feel loving, nurturing, and attached to their

fetus in utero, and bond with the babies they bear (Gonzales v.

Carhart 2007; Madeira 2012; Sanger 1996; Siegel 2008).

2

Com-

mercial surrogacy, which demands detachment, counters the

norm. The Baby M case and its progeny provide a formal declara-

tion that emotions like remorse are legally relevant in contracts.

Other jurisdictions characterize surrogacy as a dispassionate

contract for “services” and compensation for the labor of

2

Outside legal scholarship is plentiful research inspired by Mecca Cranley’s

“Maternal-Fetal Attachment Scale,” developed in 1981 to measure the construct of attach-

ment between the mother and fetus during pregnancy.

Berk 145