The Ethics of Commercial Surrogate Motherhood: Brave New Families? Scott B. Rae. Westport, CT: Praeger Publishers. 1994. 192 pp. ISBN 0-275-945679-7. $49.95 cloth.
A commercial surrogate is hired by someone, usually an infertile couple, to carry out their reproductive intentions. She may agree to be artificially inseminated, in which case her contribution is both genetic and gestational. Or she may agree to receive the couple's embryo, to act as their "host womb." When the arrangement works, she gives birth, turns over the infant, and receives payment for her services.
But what happens when the arrangement doesn't work, when, for example, the woman refuses to turn over the infant? To whom does the infant rightfully belong? Should the surrogate mother be legally bound by the contract she signed? In determining custody rights, does it matter whether or not she is the genetic "mother" of this infant? If the law requires her to surrender the infant to satisfy the terms of the contract, is the state permitting "baby selling?" These are the complex questions that Scott Rae takes up in this timely and thought-provoking book. His central thesis is that commercial, contractually enforced surrogacy should be legally prohibited. In setting out his position, he provides a helpful introduction to the ethical and legal landscape of commercial surrogacy.
The book's five chapters explore the problem of surrogacy in the context of the social and legal traditions that underlie reproductive policy. In Chapter 1, Rae assesses claims that the liberty to enter into reproductive contracts is an extension of recognized Constitutional rights to procreative privacy. Here, as in later chapters, his treatment of key legal decisions is brief but nonetheless helpful in giving the reader a sense of what is at stake in policy decisions. He concludes (almost reluctantly) that the long tradition of procreative liberty in the United States protects noncommercial surrogacy. However, special characteristics set reproductive arrangements involving a commercial exchange outside Constitutional protection.
Chapters 2 and 3 contain the book's most important prints: First, Rae argues effectively that a commercial surrogate is paid to waive parental rights; the parties engage, therefore, not simply in an exchange of reproductive series but in "baby selling." For some readers the case made here will be enough to decide the policy question. But Rae argues further that gestation should take priority over genetics in the determination of rightful motherhood and that the right to associate with one's children is a fundamental right, voiding prebirth waivers of parental rights. He also argues that custody disputes should be resolved by a dual standard: The best interests of the child ought to determine custody, and, if that is not determinative, then the strength of competing parental claims should be weighed. …