Gestation: Work for Hire or the Essence of Motherhood? A Comparative Legal Analysis
Laufer-Ukeles, Pamela, Duke Journal of Gender Law & Policy
Motherhood is no longer a simple concept. Black's Law Dictionary defines "mother" as "a woman who has given birth to or legally adopted a child." (1) Recent advances in reproductive technologies have called into question this basic definition of motherhood. Through in vitro fertilization, it is possible to extract an egg from one woman and implant the fertilized egg into the uterus of another woman, thereby severing the genetic and gestational aspects of motherhood. Depending on the identity of the intended mother, this process is known either as gestational or full surrogacy (if the egg donor is the intended mother and the birth mother is acting as a surrogate) or egg donation (if the birth mother is the intended mother and another woman acted as an egg donor). (2) The legal mother in gestational surrogate motherhood could be the egg donor, the intended mother, the birth mother or some combination thereof. In U.S. case law, "mother" has been defined in a variety of ways, including the woman who donates an ovum and the woman who intends to be the mother of a new born. (3) U.S. courts have held that whatever motherhood is, the Black's Law definition of giving birth to a child is not necessarily definitive. (4)
The potential ethical implications of surrogate motherhood have garnered considerable public attention, (5) largely because the different definitions of motherhood are based on competing ethical outlooks. The argument for autonomy and choice, strongly advocated by Dr. Carmel Shalev, maintains that women have a right to sell gestational services along with the sale of their ova and to receive payment for using their wombs. She argues that to deny women the right to do so based on concerns for their ability to consent to such a contract is patriarchal in that it questions a women's ability to make valid contracts and minimizes their full autonomy. (6) This argument favors choice and intention as the determining factors in deciding legal motherhood. On the other end of the spectrum is the argument for protection of women from financial exploitation and the imperative to keep certain body parts or biological acts sacred, similar to the prohibition on prostitution. (7) This point of view favors using gestation or parturition as the definition of motherhood, thereby making surrogacy arrangements less palatable since the birth mother will always be considered the legal mother.
The act of defining motherhood also involves a value judgment that affects the use of reproductive technologies. (8) Allowing a woman's or a couple's intention to determine legal parenthood in reproductive technology situations promotes the use of these technologies. Those who believe that intention and genetics are the significant factors in determining motherhood tend to promote the use of gestational surrogate motherhood. (9) If it is determined that the genetic or intended mother is the legal mother, such contracts would not be controversial because the contract would provide for the mother who is thereby defined as the natural or legal mother to be given custody. Thus, such definitions avoid attacks of baby-selling and exploitation of women and their babies.
On the other hand, those who believe that gestational surrogates should be deemed the legal mothers generally do not distinguish between traditional surrogate motherhood and gestational surrogacy, and tend to oppose both. (10) Despite the popularity of traditional surrogate motherhood contracts, when courts are faced with opposing claims of the surrogate and intended mothers to the child, they have deemed traditional surrogate motherhood agreements unenforceable and against public policy because they are seen as a form of baby selling. (11) If gestation is considered the basis of legal motherhood, similar problems would arise in gestational surrogacy, as the legal (natural) mother would be contracting to give up her own child. Preserving biology and gestation as determining factors that cannot be altered through intent alone makes the use of these technologies more complex. …