Managing Relational Work and Intimate Exchange

Recent studies on assisted reproduction demonstrate the ways “markets and social life are inextricably intertwined” and help disrupt the persistence of separate spheres thinking (Almeling Reference Almeling2011, 7). Inspired by Zelizer, Rene Almeling stresses the need for more systematic research on markets for bodily goods to “offer a way out of interminable debates about whether commodification is objectifying or liberating, dehumanizing or empowering” (ibid., 172). Her sociological approach to bodily commodification in the market for eggs and sperm tackles how interactions are organized and experienced, and influenced by gendered norms (ibid.). She finds that there is “deep tension between what is for sale and what is culturally appropriate” based on gendered associations, which is managed by actors through altruistic rhetoric of “donation” or “gift” for women, versus a “job” for men (ibid., 169). Almeling’s research also shows how the market for “sex cells” blurs the distinction between the public and private sphere; it challenges abstract distinctions between “gifts and commodities” or between “family and the market” (ibid., 7).

Similarly, Kimberly Krawiec details the phenomenon of “incomplete commodification” in the context of egg donation markets: the tension between a robust commercial industry and the nonmarket norms that traditionally underlie reproduction (Reference Krawiec2015; Radin Reference Radin1987). As Krawiec explains, a cultural understanding of egg donation can be both a “priceless gift” and “an act worthy of substantial remuneration,” with the same person holding both market, and nonmarket, conceptions of the same activity (Reference Krawiec2009, 161). Organizational actors help “manage repugnance” in the market for “awkward goods” (Healy and Krawiec 2012; Reference Healy and Krawiec2017). By reframing traditionally unacceptable behavior as a more palatable and familiar transaction, society is able to accept a market that is otherwise socially problematic or even repulsive (Krawiec Reference Krawiec2015, 364–65). In my research, lawyers and other reproductive professionals help manage the surrogate’s complex identity as a “carrier” and “mother” through contracts.

Further, Sharmila Rudrappa and Caitlyn Collins argue that when the moral framing of surrogacy casts the market exchange of money for babies as an act of compassion, it allows intended parents to sidestep accusations of racism, classism, and sexism despite exploitation in fact (Reference Rudrappa and Collins2015). Thus, moral frameworks are central to processes of institutionalization of intimate exchanges in surrogacy, allowing actors in the industry to account for their engagement within it (ibid., 938). Market actors rely on moral frames like altruism and empowerment to lessen anxiety, participate in the surrogacy industry of intimate exchange, and justify the inequality inherent in it (ibid., 939, 948). Similarly, I argue that fee and payment provisions in contracts frame, legitimize, and socialize surrogates and intended parents into purchasing and providing pregnancy services, despite cultural squeamishness about the baby market, especially given the conflicted legal environment.

Other recent scholarship on surrogacy pays attention to what Shellee Colen coined “stratified reproduction” in her research on West Indian nannies working as caregivers in New York City (Colen Reference Colen, Ginsburg and Rapp1995). Concerns about the stratification of reproduction include the devaluation of women’s labor, as well as the use and control of bodies that varies by class, race, global positionality, and lack of power (Dasgupta and Dasgupta Reference Dasgupta and Dasgupta2014; Goodwin Reference Goodwin2010; Pande Reference Pande2010; Roberts Reference Roberts1995). In the context of surrogacy, Dorothy Roberts unpacks the legal and social implications of overvaluing the (white) genetic tie at the expense of gestational labor, given the historic use and commodification of black women’s bodies for white slave masters (Reference Roberts1995). However, provision of gestational services may be oppressive or empowering, depending on how the individual surrogate views her other opportunities in the marketplace, her skills, or responsibilities (Mohapatra Reference Mohapatra2012; Pande Reference Pande2014).

Although the dominant assumption holds bodily commodification is inherently and uniformly degrading (Almeling Reference Almeling2011, 13), multiple feminist scholars encourage testing that theory with research on experiences of those who participate in such markets. Teman’s ethnographic work challenges the idea that “normal” and “natural” women bond with the babies they bare, which is culturally constructed (Reference Teman2010). Surrogacy is simply an extension of the kinds of care work and nurturing that women have always performed without compensation, and treated as part of “natural” female emotions and instincts (Anleu Reference Anleu1990, 72; Jacobson Reference Jacobson2016). However, as argued by Sharyn Roach Anleu, surrogacy breaks the myth surrounding maternal instincts, since mothers can give their babies away, but also enter into a contract that rewards them for doing so (1990). Payment for gestational services questions, rather than reinforces, gender norms, which could be good for women (ibid., 72; Ertman Reference Ertman2003).

Surrogacy is a Job

While compensating womb work challenges social norms, scholars have advocated it is empowering in the context of tax policy. As Bridget Crawford boldly asserted, “some pregnancies are and should be taxable” (Reference Crawford and Brooks2011, 95). She argues that taxing surrogacy has social and cultural implications, like conferring privilege and status, that help normalize the practice and promote equality. Additionally, fertility clinics should be required to talk about taxes with egg donors, so that they can appropriately charge for their egg retrieval at an amount sufficient to cover their tax responsibility and to prevent clinics from artificially depressing prices for donors while garnering more of the industry profits (Crawford Reference Crawford2019). “Tax talk” also has broader implications for Crawford: it is a discursive strategy that creates and reflects attitudes about social behaviors and choices and has a legitimating function (ibid., 27). Hiding the taxability of fees from egg donors artificially distances the practice from the “specter of ‘baby buying,’” reinforcing the false narrative of altruism (ibid., 1, 5).

Similarly, Lisa Milot advocates for appropriate tax treatment when human bodies and their materials are used or transferred (Reference Milot2010, 1054). Since surrogacy requires transfers involving a “living intact body” distinct from excised body materials like egg donation or cadaver parts, it should be characterized as a service by a laborer for federal tax purposes (ibid., 1058). For Milot, that would align with laws against baby selling and avoids characterizing a baby as “property” (ibid., 1103). Thus, taxing reproductive material and services empowers women by giving it social status and value within the commercial mainstream. Contracts similarly confer legitimacy.

Others further highlight the financial implications of surrogacy for the surrogates themselves, who typically do not view gestation of a child as a “job,” nor see themselves as “surrogacy professionals” (Holcomb and Byrn Reference Holcomb and Byrn2010, 650). Morgan Holcomb and Mary Byrn advocate for the tax treatment of reproductive services, given it is a trade or business by a woman who seeks to make a profit doing a unique job via complex contracts. In their view, surrogacy expenses should qualify as ordinary and necessary business deductions since “her body is her business,” however personal this type of labor traditionally seems (ibid.). Even though surrogates are not technically categorized as “employees,” this should apply, based on the amount of labor and time it requires, and how surrogates frame their actual responsibilities (Jacobson Reference Jacobson2016). As Healy and Krawiec assert, “[a]lthough egg donation may be a loving and priceless gift in the eyes of exchange participants, from a tax perspective it is simply a risky job, like boxing, football, or fishing,” as confirmed by the court in Perez v. Commissioner (Reference Healy and Krawiec2017, 89).

But is surrogacy just like other kinds of risky jobs? Pande’s study of commercial surrogacy in India asserts it is a new form of labor—what she refers to as both “womb work” and “embodied labor” —where production and reproduction intersect (Reference Pande2014, 9). While this form of labor may create inequality, given limited economic opportunities in the market and unequal power relations between clients and surrogates, surrogates are not mere victims (ibid., 23). Rather than uniformly “dismissing the labor market as inherently oppressive,” Pande seeks to “recognize, validate, and systematically evaluate the choices that women make in order to participate in that market,” (ibid., 9). The industry, through various practices, produces the perfect “mother-worker” for global clientele (ibid., 22). Pande studies the disciplinary tactics used by actors in the industry and strategies surrogates use to negotiate and resist within that structure, like casting themselves as “divine” or “virtuous producers” to challenge stigmatizing cultural labels (ibid.). While the actual labor market conditions demand reform in light of revealed inequalities, instead of a ban, Pande promotes transparency and “fair trade international surrogacy” (ibid., 25). My research is intended to create that transparency by revealing fee and payment provisions in surrogate labor contracts emerging in the US market.

Law, Society, and Gender in Exchange Relations

How do parties derive, understand, and enforce the terms of agreements? In general, contracts manage risk, serving as insurance for the parties in case of breach (Macneil Reference Macneil1974; Crawford Reference Crawford and Brooks2011). However, from a law and society perspective, contracts are not purely instrumental and governed by their contents but viewed as exchange relations, where social, community, and business norms coupled with formal law help structure commercial dealings (ibid.; Bernstein Reference Bernstein1992; Ellickson Reference Ellickson1994; Granovetter Reference Granovetter1985; Macaulay Reference Macaulay1963; Reference Macaulay2005). Contracts do not emerge in isolation but are institutionally situated, organizationally mediated, and individually negotiated within larger systems of social beliefs and power relations embedded in subculture (Healy and Krawiec Reference Healy and Krawiec2012; Suchman Reference Suchman2003). Actors deploy contracts as a technical means of structuring their relations, as symbolic representations, and as cultural displays that inhere particular normative principles and social experiences (Suchman Reference Suchman2003, 100).

In their study of kidney exchange markets, Healy and Krawiec describe the “social imaginary of generalized reciprocity,” where contract “lurks in the background” as the alternative for encouraging commitment between participants (Reference Healy and Krawiec2012, 668). As they explain, “exchange of awkward goods is often accompanied by a considerable amount of practical and symbolic work that signals the transaction’s social meaning and basic principles by which it is governed,” which offers resources to participants and professionals to frame the meaning of the transaction (ibid.). The imagery of gift exchange combines with specific logistics and organizational actors working in the background, and where “the imagery of formal contract may come to structure the social meaning of participation” regardless of contract enforcement (ibid., 669). I view two distinctions in surrogacy exchange relations: the enforceability of contracts has been legally tested in several jurisdictions, and surrogacy contracts are gendered; by definition they can only be performed by women.

From a sociolegal perspective, gender is institutionally constructed through specific processes, discourses, and language legitimated through law (Albiston Reference Albiston2010; Luker Reference Luker1984; Nelson and Bridges Reference Nelson and Bridges1999; Risman Reference Risman1998; Yngvesson Reference Yngvesson1988). The historic devaluation of women’s labor as naturally “less worthy” than men’s, particularly when it is uncompensated in the home and undervalued in care work, persists even in professional workspaces (Abrams Reference Abrams2001; England Reference England2005; Ehrenreich and Hochschild Reference Ehrenreich and Hochschild2002; Fineman Reference Fineman1995). Surrogacy not only challenges the traditional alignment of mother-child bonds but also “nurtures parents-to-be” through interpretive and relational work (Berend Reference Berend2016; Teman Reference Teman2010). A variety of professionals in the reproductive field—from lawyers, to matching agencies, to psychologists—use contract provisions, practices, and emotion management techniques to manage risk and constitute identity, simultaneously legalizing and reconstructing gender and family paradigms (Berk Reference Berk2015).

The findings that follow make visible a complex, relational portrait of contracting as it interfaces with developments in the reproductive market amidst an unsettled and divided legal terrain. The goal is to illuminate how the bodily commodification process in surrogacy takes place through interactive contractual transactions framed as labor as it encounters an incompletely commodified market. Contracting makes the process meaningful for participants in that market to manage risk of breach and social squeamishness about baby selling, instead making it legitimate and a job. Surrogacy is a doubly relational contract: not just as between the promisor and promisee for services and consideration but also because the “product” is human (Radin Reference Radin1987). Contracting is a site where norms for social categories like “mother” and “worker” are constituted and where gestational services become “labor.” The data provide an opportunity to capture, and then develop informed policy to respond to, instances of stratified reproduction in the absence of regulation.

Compensation and Payment Provisions

Compensation clauses reflect the market value of surrogacy, as well as the significant risks involved, and are one of the core elements of the exchange relationship. They are highly symbolic and convey status within an unsettled and contested sociolegal environment. Contracts have actual legal power while conferring legitimacy to womb work.

The content analysis of the contract sample indicates that base compensation, or what a California agreement calls “main compensation,” ranges from $18,000 to $50,000. However, $50,000 was an outlier and was found in only one contract from Texas. The average for all contracts exempting the outlier was $23,000, and the lowest compensation came from Oregon. Data triangulated from interviews of lawyers, agencies, and their clients confirms the range. One representative lawyer in the study explained:

Thus, base compensation increases when gestating multiples, acknowledging the additional risk and effort. In fact, surrogates who have been through one, two, or more prior surrogate pregnancies command the most remuneration uniformly across jurisdictions. Respondents explained that, in addition to medical risks in pregnancies for multiples, there is a relational component: the surrogate has demonstrated she can successfully gestate and hand over the baby in the end, performing the contract. This decreases anxiety in the parents, who report that if she has given up one baby, she is likely to give up another. Perceiving the process as less risky has monetary value.

Note that half the sample could not be included in the calculations for analysis because they had blanks or zeros adjacent to the compensation line. Blanks typically indicate the payment amounts were negotiable. Whether there was a blank, an amount, or a range also varied depending upon the involvement of a matching agency and its practices, since subjects report they set rates, which are now standardizing for gestational services and fees. In those cases, a surrogate accepts what she is offered, and in fact, agency contracts may prevent her from receiving more than a maximum sum. One Wisconsin gestational surrogate who was paid the cap of $25,000 for her services admitted that, “$50,000, in retrospect, would be more fair.” Thus, the Texas outlier from my contract sample paying $50,000 in compensation may be signaling that the going rate is moving in the “more fair” direction and that at least some surrogates in the United States have more agency and bargaining power. How do participants understand these provisions?

During interviews, lawyers emphasized that surrogacy was not a “job,” nor were the intended parents “employers.” Per lawyers in the study, that characterization would have legal ramifications like taxation and worker’s compensation, confirming what Crawford (Reference Crawford and Brooks2011), Milot (Reference Milot2010), Holcomb and Byrn (Reference Holcomb and Byrn2010), and others have advocated for some time.Footnote ⁴ Resistance to calling gestational services a “job” or “employment,” and strategically avoiding tax consequences, also flags the incomplete commodification of this market (Krawiec Reference Krawiec2015). Notably, my subjects did not report their gestational services as a “gift” if they received compensation, as other scholars have highlighted in the context of egg donation markets (ibid.; Almeling Reference Almeling2011). Perhaps this signals that the surrogacy market in the United States, despite a conflict among state laws, is more completely commodified than other reproductive and bodily goods markets.

Surrogacy contracts frame base compensation to “Carriers” as “service,” “inconvenience,” “pain and suffering,” “assistance,” and reimbursement for “personal discomfort.” Further, contract clauses specifically acknowledge consideration for both medical and psychological risks. Here are notable examples:

The language above aligns with the interview data, which report surrogates are compensated for “gestational services,” “inconvenience,” “pain and suffering,” or as one Texas lawyer characterized it, “wear and tear on the female body.” While some lawyers frame it as a service, others predict torts by formalizing in advance what the consequence of negligence will be, rather than calling it income. Similarly, taking cues from family law, some lawyers frame payments as “pre-birth child support.” When asked to explain the rationale, a Texas attorney said, “because, [the intended parents] are required to support the child,” especially for medical costs, while “in utero” (Lawyer TX).

Thus, some lawyers take sanctioned practices from family law or torts and transpose them to surrogacy in the absence of set norms and rules in the field. After all, as one lawyer explained, “you have to be very careful about any exchange of money to somebody who you’re asking to relinquish parental rights” (Lawyer TX). Given medical and legal risks, as well as social unease, these alternative frames help actors make cultural sense of the market and likely make it more palatable and familiar (Krawiec Reference Krawiec2015). It appears that less completely commodified and legally ambiguous markets cover their bases with language that dilutes the reality of “exchange.”

What else might account for differences between jurisdictions? The variable language and terms for compensation in a surrogacy agreement appears to correspond to the law of the state in which it was drafted. For example, the California contract above specifies payment is “compensation for services,” which comes directly from the language of Johnson v. Calvert (CA 1993) before a statute was enacted. Similarly, Illinois is reported by participants across states as the most “surrogacy friendly” and has regulated paid pregnancy by statute the longest, making contracting practices there less risky, less stigmatized, and more normalized. That statute not only openly frames third-party gestation as a “service” but also acknowledges the effort and risk involved in the process (750 ILCS 47, 2005).Footnote ⁵ An Illinois contract in my sample makes clear she is being paid “for her effort, risk, and work” related to “her service as a gestational surrogate,” as well as her effort in “nurturing and sustaining the Intended Parent’s child.” By overtly acknowledging, rather than hiding, compensation for reproduction, contract provisions legitimize, elevate, and transform pregnancy into womb work, distancing it from a morally repugnant exchange (Crawford Reference Crawford2019; Healy and Krawiec Reference Healy and Krawiec2012). Since contracts must avoid characterizing surrogacy as “baby selling,” the Illinois contract also plainly affirms compensation is not for “the outcome of the pregnancy.”

Relatedly, a surrogacy agreement cannot be framed as a sales contract, since there are international bans on markets in children and trafficking in women. Therefore, unlike surrogacy-friendly California, Illinois, or Massachusetts, states that have no case law or statutes regulating surrogacy or ambiguous law tend to cover their bases, paying not only for the “service” and “medical risks” but also “as an expression of Intended Parents’ appreciation” for the “pain and suffering, discomfort and inconvenience Gestational Carrier will experience” (Contract CO). Not only does this reflect variation within an incompletely commodified market—that some markets are more completely commodified than others in a disparate legal environment—but demonstrates the complexity of economic life and organizational practices. While not struggling between the language of “gift” and “commodity” as in donor markets (Almeling Reference Almeling2011; Healy and Krawiec Reference Healy and Krawiec2012), participants in surrogacy can hold multiple understandings of the same activity to manage risks, uncertainty, and ambivalence in the practice (Ibid.; Pande Reference Pande2014).

Overall, there was variation in base compensation regardless of what it was termed, excluding from calculations what I call “compassionate contracts.” A compassionate contract—also referred to by study subjects as “gift surrogacy” —is a process for a family member or friend that does not include base pay, but may include payment of expenses. These were still formalized via contract. Most typical were compassionate contracts between siblings and cousins. However, “gift surrogacy” is not the same as casting the practice as an “act of compassion” in order to manage moral repugnance in the market (Rudrappa and Collins Reference Rudrappa and Collins2015). Rather than a rhetorical strategy, it is an instrumental way for lawyers and agencies to distinguish between types of compensated agreements: those that include base compensation, and those that only reimburse for actual costs and fees incurred by a familiar.

While compensation figures partly transferred from adoption law, the range of fees provided in surrogacy contracting go beyond those in adoption. The nature of contracting for costs and fees, in advance of a confirmed pregnancy, is also quite distinct.

Fees for Medical Procedures and More

In addition to base compensation, the findings reveal surrogates receive fees for a number of specified items formalized in contracts. A comprehensive list of the seventy-six different fees coded from the content analysis of the contract sample appears on Table 2. Thus, payments are not strictly for the value of the service of gestation but also add a variety of supplemental fees and perks. Some examples of the former include a fee for enduring an amniocentesis, undergoing a caesarean section, and “selective reduction” or abortion of fetuses. Examples of the latter include a bonus to get a massage, housekeeping, and even a pet care allowance. These fees are becoming institutionalized in the reproductive field and were found across the contract sample, but have variation. I next provide a few examples of fee provisions from the content analysis and interviews to show how the legal process of bodily commodification unfolds above the main compensation.

TABLE 2.

List of 76 Codes for the Types of Fees Paid to Surrogate

To begin, as an Oregon agreement states, “In the event that a cesarean section is ordered to deliver the child(ren), the Gestational Surrogate will be paid an additional $1500.” In California, a c-section is also worth $1,500, which may be a sum standardizing across jurisdictions, at least on the West Coast. In Wisconsin, a more generous agreement reads: “$3,000 if Child is delivered by Caesarian Section.” But in another Oregon contract, the c-section fee is negotiable, indicated by the blank text in another color and font on the draft agreement: “C-section $HOW MUCH? if the child is delivered by Caesarean Section in accordance with the recommendations of GC’s prenatal care providers. Notwithstanding the provisions of subsection 14.4, below, this compensation is payable regardless of when the Caesarean Section occurs and/or whether the child survives.” The fact this figure is open reveals some agency on the part of surrogates and intended parents to negotiate fees they deem appropriate, as well as diversity among practices by lawyers even within the same jurisdiction. It also shows payment is not contingent upon a healthy birth but for enduring the procedure itself.

What about the risk of carrying twins or higher multiples? There is wider variation, ranging from $1,000 to $5,000:

There is less variation in supplemental fees to endure the amniocentesis, which appears to be standardizing as worth $500 across jurisdictions, per these two examples:

However, one Maryland contract did not provide any supplemental allowance for enduring the amniocentesis procedure—at least not formally in writing—instead directing the surrogate to “permit monitoring by frequent testing for normalcy of the fetus” and if “deemed medically advisable” have an “amniocentesis or chorionic villi sampling.”

The content coding revealed provisions for a number of medical procedures and risks, including fees for abortion, induction, bed rest, ectopic pregnancy, transfers, in vitro fertilization, hysterectomy, mock cycles, and more. Contracts were inconsistent as to how many and the kinds of fees that would be paid, in addition to their amounts. However, it is clear that, despite social anxieties about womb work, the market is highly active and commodifying body parts, as well as serious medical risks.

What is permanent loss of reproductive function worth? Apparently in both Massachusetts and California, $3,000:

And what do loss of reproductive function clauses mean to the attorneys in the study? When I interviewed a different California lawyer, she revealed:

For this lawyer, delineating fees for bodily risks in the formal agreement serves less to place an actual value on a women’s uterus as a body part, but instead, mentally prepare and manage clients for the medical risk via consideration and elicit informed consent.

However, a surrogate in the study who had to haggle during her contract negotiations sees fees for loss of reproductive function differently. She explained, “being a young person, I felt that loss of reproductive organs was important and later down the line, we’ll find out how that was important. So the standard for that is usually $2,500. Mine was put a little bit higher. It was put at $7,500” (Surrogate IL). In fact, she had serious complications following an in vitro fertilization procedure and lost her fallopian tube. Curiously, the lawyers battled over paying out the sum she negotiated; the intended parents only ended up giving her $3,250. Thus, the Illinois surrogate who actually experienced permanent medical complications felt inadequately compensated, endured suffering, and appeared not to have a rigorous legal advocate. In the end, rather than sue to enforce the original bargain, she “lumped it” (Engel Reference Engel2016), even in surrogacy-friendly Illinois.

More importantly, both the California attorney’s and the Illinois surrogate’s perspectives make visible interactions unfolding an incompletely commodified market in flux between industry and nonmarket norms and an unsettled, nascent legal field increasingly using contracts to rationalize and legitimize the exchange. Clearly having trouble talking “about this stuff out loud,” the attorney expresses her moral ambivalence about surrogacy as “much more of a commodification now.” She understands that “open displays of materialism are deemed socially unacceptable,” as Krawiec has theorized (Reference Krawiec2009, 207). Our lawyer admits that “putting a price on these things” “does sort of make me kind of feel sick inside.” These “things” are women’s bodies, doing risky womb work, and outside the norm.

While our attorney manages the social and moral unease of the market, our surrogate manages the actual consequences of this largely unregulated market and some lack of bargaining power to enforce the terms of her agreement. In tears the surrogate recalled, “I just felt like a failure … and I felt like I set out to do something so great, and now it’s ending so wrong. And now here I am putting my health at risk” (Id.). She added that her husband was “sitting in the hospital while his wife has internal bleeding—and now he is worried about his children not having a mother.” This may flag concerns regarding stratified reproduction and evidence support for more uniform, protective policies to balance power in these relations. Note there are provisions in the sample of coded surrogacy contracts that pre-establish claims for intentional infliction of emotional distress in the case of breach, given potential medical and psychological risks. However, that clause typically favors the intended parent(s) in anticipation of the kind of “anguish” and “loss” they would feel if the surrogate refused to cooperate fully in performance of her contract. This too demonstrates more power on the side of parents, rather than surrogates, for contract enforcement.

Still, price tags placed on the inconvenience and risks inherent in surrogacy are arguably empowering, given the historical failure to commercially value women for their domestic labor, let alone, their gestational services (Crawford Reference Crawford2012; Field Reference Field1990; Holcomb and Byrn Reference Holcomb and Byrn2010; Milot Reference Milot2010; Shalev Reference Shalev1989). Other types of payments are applied to nonmedical incidentals such as housekeeping, child care, maternity clothes, special diets, lost wages, and travel expenses, to name a few. Trying to handle a household of your own while pregnant with other people’s children can be stressful, which these fees acknowledge through payment. For example, a “household helper” is offered at “$100 per week (paid monthly in advance) in the case of a multiple pregnancy or high-risk pregnancy” to manage the additional pressures the pregnancy brings (Contract OR). Fees can also be paid to the surrogate’s husband for his lost wages and travel when he supports his wife in performing the contract.

Finally, and to avoid conflicts and similar scenarios, intended parents may support the surrogate’s womb work by paying for the cost of individual psychological counseling or support groups.Footnote ⁶ Here are two representative provisions from Wisconsin and California

Agencies and lawyers anticipate the emotional, complex, and ambivalent experiences in surrogacy, and thus, encourage counseling. These provisions account for the cost of therapy, paid by the intended parent(s). However, contracts vary as to the limitations or caps they apply to the counseling fee, such as $100 per month or up to $1,200. All of this affirms what Holcomb and Byrn argue—that however personal and separate from the market society placed reproductive labor in the past, today a surrogate’s “body is her business” (Reference Holcomb and Byrn2010).

However, counseling is not always covered as a fee in surrogacy contracts. A New Jersey agreement contends, “The Genetic Father and the Intended Father shall not be responsible for: (1) Any expenses relating to emotional or mental conditions or problems of the Traditional Surrogate, whether or not usually connected to the Traditional Surrogate’s pregnancy.” In contrast to the provisions above, there is an absence of risk management, unless the surrogate pays for therapy herself. Perhaps examples like these affirm that surrogacy is normalizing in the market as just another kind of risky job like boxing, fishing, or military service which may or may not offer behavioral health coverage (Healy and Krawiec Reference Healy and Krawiec2017). This seems surprising given it is a traditional surrogacy contract, which In Re the Matter of Baby M institutionalized as “fraught with emotion” in that very same state (NJ 1988).

Bodily Autonomy and Risk Provisions

In addition to base compensation and a variety of fees, a series of rules and provisions govern the amount of autonomy a surrogate is asked to give up over her body while pregnant and the level of risk she is willing to assume for a third party when paid to do so. These provisions do not offer additional remuneration but are in consideration of overall contract compensation. The data here vividly reveal how this nascent field is caught in normative flux—a transition between the reality of an active market in bodies and babies and embracing that market as socially acceptable (Krawiec Reference Krawiec2009). They also demonstrate spaces of resistance and emerging norms that reproductive labor is a job and not a “gift,” per other scholarship that views the rhetoric of compassion as a mediating strategy for organizational actors (Almeling Reference Almeling2011; Healy and Krawiec Reference Healy and Krawiec2017; Rudrappa & Collins Reference Rudrappa and Collins2015). The interview data demonstrate the ways in which these provisions are deployed by lawyers on behalf of anxious intended parents who seek veto power over key decisions normally made by a birth mother that impact the ultimate goal of the contract: a healthy baby. Bodily autonomy and medical risk provisions manage the intended parents desire to control not only the quality of the baby but also the quantity of children desired. But do they also provide a window into potential conditions for stratified reproduction and inequality now emerging in the field?

My content analysis of the contract sample revealed three striking areas in which this is the case. The first is the rules surrounding what is called “selective reduction” and “termination,” or choosing which fetuses to abort in the case of (1) abnormalities and defects, (2) gender selection, and (3) multiple unwanted fetuses. The second area is in the case of serious complications, where the surrogate’s body must be maintained on life support equipment in order to incubate the fetus until viable outside of the mother’s womb. The third might be described as the essence of an agreement: assumption of the risk clauses. To the extent conflicts arise over crucial decisions affecting the outcome of the pregnancy, attorneys manage significant legal as well as physical risks in a largely unregulated field.

Even when a surrogacy contract contains strong statements of intent regarding custody of the child in the recitals and representations section, there is typically a separate provision describing in detail who will have legal custody and who will have physical custody of the child. Legal custody includes statements in surrogacy agreements that the intended parents have a right to make medical decisions regarding the fetus prior to and after birth—despite the fact it is in utero—whereas physical custody implies the right to have control of them upon birth. Given political efforts by religious lobbies towards greater “fetal rights” (Freedman and Weitz Reference Freedman and Weitz2012), the emergence of contract provisions that establish rights to parentage while the child is in utero reflect broader market interactions with other sociolegal norms in reproduction. For example:

This contract establishes parentage “from the moment of conception” as a symbolic accord between the parties, and since maternity is attributed by the fact of gestation under the Uniform Parentage Act. Thus, provisions, which vary by jurisdiction, describe how parentage will be legally established. In some states, the surrogacy contract will direct the surrogate and her spouse to cooperate in obtaining a pre-birth order that establishes parentage in the intended parents while the fetus is in utero.Footnote ⁷ In others, post-birth legal procedures are required, as in adoption. Clearly, the level of control over the surrogate’s body formalized in contracts as establishing legal custody in a fetus implicates multiple concerns voiced by feminists regarding women’s autonomy and fundamental rights.

Perhaps the most complicated provision related to bodily autonomy is a clear and separate one describing intentions for the termination and selective reduction of fetuses, rules for carrying of multiples, abortion when abnormalities are detected following amniocentesis, and what to do in the event of a miscarriage or stillbirth.Footnote ⁸ Most of the contracts in the sample across jurisdictions contained a statement that despite the intent of the parties to give control over the decision whether to terminate a fetus to the intended parents, Roe v. Wade (US 1973) remains the law of the land. In my sample, 83 percent of the contracts (twenty-five) plainly state that the surrogate retains her fundamental constitutional right to carry, or not carry, a pregnancy to term. In two representative examples, one appearing in all capital letters per the original:

This provision seems more protective of the surrogate and respectful of her fundamental rights and thus, potentially empowering. This comports with findings from Pande (Reference Pande2014), Rudrappa and Collins (Reference Rudrappa and Collins2015), Teman (Reference Teman2010), and Jacobson (Reference Jacobson2016) that find not all surrogates are victims. But there are degrees of power and agency, and the reproductive market is a complex, interactive terrain (Almeling Reference Almeling2011; Healy and Krawiec Reference Healy and Krawiec2017).

However, other contracts better reflect the incompletely commodified nature of the market, as well as the legal and moral ambiguity of womb work. For example, in Minnesota:

While contracts expressly acknowledge that a surrogate retains the ultimate right to control decisions over her body, even as regards termination of a fetus she is carrying for another person by contract when they object, she may be asked to waive that right. Participants in the study said non-waiver may be a “deal breaker.” Whether such a waiver is legally enforceable is a separate issue, demonstrated by cases like that of gestational surrogate Crystal Kelley (Cohen Reference Cohen2013).

Even in the absence of a waiver, exercising that right to abortion in the case of surrogacy may constitute a breach of contract for which there are serious financial consequences that a surrogate cannot likely afford. As described in other research, matching intended parents with surrogate’s views on abortions is an anticipatory emotion management technique intended to avoid conflicts, legal risks, and is key to evaluating their emotional fitness for the process (Berk Reference Berk2015). Selective reduction and termination provisions are carried over from the matching phase by lawyers and crystallized in the formal agreement. Selective reduction and abortion provisions may be an area for legitimate concern by feminist scholars who are concerned about stratified reproduction in this market. Their fears may be warranted, or appeased, depending upon degrees of power individual surrogates have to cede to demands or resist and their options in the marketplace. Abortion provisions reflect the complexity of interactions in the market with other social norms and practices and the quintessentially gendered nature of these exchange relations.

Given the potential for complications during pregnancy, how is the risk of death managed in contracting? As described in the content analysis, “Carrier Incapacity” provisions detail the conditions under which a surrogate will be maintained on life support to gestate the fetus. As a Texas lawyer simplifies, “if the carrier is married, her husband agrees not to pull the plug as long as the baby is viable.” Life support provisions invoke the long-held fear of critics that surrogacy has unique gendered effects: a woman’s body becomes, quite literally, a vessel for reproduction. The surrogate and her husband agree to formally bind themselves to life extension at the request of the intended parents in consideration for her base compensation, which is on average $23,000. But to accept the benefits of surrogacy, the risk of terminal incapacity must be anticipated.

Life support provisions require a rare commitment and appear to be diffusing in the field. Contracts coded from California, Massachusetts, Florida, Wisconsin, and Illinois have “carrier incapacity” provisions that detail the conditions under which a surrogate will be maintained on life support to gestate the fetus. An exemplar California contract reads:

An incubation period beginning at twenty-five weeks while the surrogate is a “host uterus” will inevitably be an emotionally challenging period for the surrogate’s husband and children. But what do these provisions look like “in action” when negotiated, and how are they experienced by the participants immersed in the contracting process?

Negotiating life support provisions, along with selective reduction and abortion provisions, can be dicey and highlight tensions between commodification of the body and moral repugnance for it within a nascent and unsettled market. In one California attorney’s experience:

This interview reveals several findings. First, it demonstrates that surrogacy contracts are thoughtfully considered, negotiated, and taken seriously and that surrogates do have some agency, at least some of the time. Second, life support provisions in contracts—and the lawyers who draft them—manage social and moral unease about this market in normative transition, as well as legal ambiguity, uncertainty, and risk. Third, contracts have far more than symbolic force, they have actual formal power.

While he perceives it is “rare,” complications during pregnancy do occur, including several cases of death and serious injury reported during interviews for this research study. Life support provisions are not merely one of the “high, intensely emotional things” lawyers and their clients must handle but also symbolize a level of control and commodification unusual in other “labor” or service contracts. In this way, womb work is distinct from other risky forms of labor, as Pande proposes (Reference Pande2014). Both life support and abortion provisions highlight the space that production and reproduction meet inside a woman’s body and in a uniquely gendered way. On the ground, the lawyer’s strategy as an actor mediating an unsettled sociolegal environment is to meet to inform all parties of the risk, talk through the provisions, broach it again during contract negotiations, and offer a “roadmap” for the parties to “think through it carefully.” Life support provisions show that womb work is not like other risky jobs, which would not have such terms in their contracts.

In addition to life support provisions, 73 percent of contracts (twenty-two) provide the surrogate with life insurance coverage for her spouse and children if she dies from pregnancy-related complications. However, the contracts vary as to the maximum amount the intended parents are required to spend on her behalf. In my sample, the amount of money allotted towards the purchase of a life insurance premium ranged from $250.00 to $500.00 as an annual cap. Those premium costs translate to a policy value that ranges from $100,000 to $350,000 to be paid to the surrogate’s family in the event of her death. Valuation of the surrogate’s life is itself a highly symbolic provision, formalizing an assessment of what gestational labor, exclusively performed by women, is worth. Insurance provisions are also related to “assumption of the risk” provisions, which are universal in surrogacy contracting.

Predictably, “assumption of the risk” provisions also appear in surrogacy agreements, and perhaps carry over from other types of risky service contracts. But the provisions are not generic. These clauses require a surrogate, in the face of grave risks, to assume those risks only upon “careful, unemotional reflection” (Contract MA). I found such phrasing in 33 percent of the sample. Representative provisions include a California contract where, “The Parties to this Agreement represent and warrant that the decision to enter into this Agreement is a fully informed decision, made after careful and unemotional reflection,” and in Minnesota where, “The decision of Gestational Carrier to enter into this Gestational Carrier Agreement is a fully-informed one, made after careful, objective, and unemotional reflection on all aspects of this arrangement.” The call for “unemotional reflection” in surrogacy contracts evidences the persistence of a rational choice, liberal legal model of bargaining and risk management. It also perpetuates a fallacy that “emotion” is separate from “reason,” that objectivity is possible (or desirable), and makes subordination in exchange relations invisible. Rather, all market transactions—including those in baby markets—are interactive social processes made up of individual, organizational, and institutional relations, further mediated by cultural norms.

Agreements in the sample not only require assumption of the risk, but also simultaneously warn that, “the short-term and long-term psychological effects of Surrogacy Arrangements on the Parties or on the Child are not predictable” (Contract IL). Apparently, parties are to calculate unknown psychological risks free from emotion. Perhaps future work can compare the contents of assumption of the risk clauses in surrogacy to other types of risky work, such as for athletes, stunt doubles, and service personnel. Until then, this sample demonstrates there is an active market in womb work, and the sociolegal field is moving beyond debates about the morality of bodily commodification. Bodily autonomy and risk provisions serve a legitimating and normalizing function that further concretizes womb work as a risky job.

“Savvy” Surrogates and “Rock Star” Parents: Negotiations, Agency, and Stratified Reproduction

Given negotiations over compensation, fees, bodily autonomy, and the value of risks in surrogacy contracts, what variation was identified in how this commodified exchange is experienced by participants in the sociolegal market overall? More importantly, are there findings to suggest conditions are ripe for stratified reproduction in US surrogacy markets? Subjects described negotiations that spanned the banal to shameful to contentious. Some surrogates expressed gratitude when connected to more generous intended parents, and may then contract for a second pregnancy. Others come to the bargaining table well-informed and savvy.

Regardless, there are class differences between the parties. Most intended parents are typically older, more educated, and wealthier than the surrogates they hire, which empowers them in a variety of ways, namely, they are the party who pays the lawyer drafting the agreement and rewards the agency who facilitates the match. Still, intended parents not only face their strong desire for a family, which creates co-dependency, but also a possible six-figure price tag. Contract negotiations can be challenging for the intended parent(s) and their lawyers. Sometimes a savvy surrogate will cause stress, anxiety, and anger in the parents, especially those who feel desperate following infertility or miscarriage. In those cases, lawyers and agencies step in to “triage” a contentious situation (Berk Reference Berk2015).

How do parties interpret the overall compensation and their roles in light of these dynamics, as the field takes shape? Describing a recent contract, a lawyer in California illustrates:

This interview uncovers several aspects of the exchange relation in action. First, the lawyer manages the risk of potential conflicts by strategically containing the situation. Without established norms and standards across the field, and in light of persistent social and moral ambivalence about womb work, she reassures her clients that she believes the surrogate is being unreasonable. The intended parents then reframe their identity as “heroes” and “rock stars”—rather than suckers—for being agreeable when it comes to money, diffusing the conflict. Also telling about the state of the baby market: lawyers manage risk by absorbing the feelings and the fight. When “all the love and the support and wanting to help each other sometimes gets broken down,” she explains, “I try and let that roll off my back. If they do go after me, that’s great. What I don’t like to see, obviously, is people going after each other. And better me than them” (Lawyer CA).

More importantly, this exchange demonstrates that some surrogates are not victims, have agency, and assert degrees of power. It empirically challenges assumptions and real fears that all surrogacy is oppressive for women in the United States, should be banned, and may contribute to further inequality, gender, and class stratification. After all, this California surrogate is not only “experienced,” “knows better,” and is “pushing” for better compensation in this negotiation, but also actually received what she advocated for in the end. However, my research informs that outcome is based on another important variable: the intended parents’ lawyer is a cautious, principled advocate, beyond operating within and constrained by a risky sociolegal market. In my research, lawyers like this one with membership in professional organizations who commit to best practices and ethical standards in assisted reproduction tended to be most mindful of their role in better balancing power.Footnote ⁹ Lawyer approaches and practices varied significantly within each jurisdiction and across twenty jurisdictions sampled for this study.

Other examples make power imbalances and inequality in individual exchange relations more visible. Even when intended parents may be generous with surrogate compensation, they expect to have more control in return. Thus, class, age, and educational disparity may show itself through demands and condescension, triggering conflicts. According to one Virginia lawyer:

That “attitude” and “condescension” of the intended parents as described by the Virginia attorney was commonly reported by each of the four subjects in this study—including from parents themselves. Several subjects for this study assert power, control, and a sense of entitlement to demand what they “pay” for. The scope of that is still unclear in this market.

Similarly, a couple from California, on one hand joking their surrogate was the “oven” “cooking” their babies, ambivalently struggled that “she was sort of like a commodity or this machine or something,” noting “it took a while for me to be a peace with using a surrogate. … I don’t know how great like surrogacy is to the world.” On the other hand, subjects in each interview category reported that surrogacy is less about the money and more about enjoying the experience of pregnancy and the attention it brings. These examples not only bring a baby market in normative flux to life as participants grapple with bodily commodification and womb work but also show that actors in the field can hold multiple cultural understandings of the same practice at once (Almeling Reference Almeling2011; Healy and Krawiec Reference Healy and Krawiec2012; Pande Reference Pande2014). Even when parents acknowledge the tremendous “gift” the surrogate is giving them—which the interviews suggest they do—they might be simultaneously “respectful, but micromanaging” since they are paying, which are not, according to a lawyer in Oregon, “mutually exclusive.” Surrogacy, and actors’ identities within it, can thus be commodifying, alienating, empowering, and more.

Importantly, some intended parents will ask their surrogate to cut her fees, even though she is most often receiving less compensation than agencies for their matching fees, which average $25,000-$28,000 per match. In fact, of all the “actors” involved in a surrogacy agreement—from reproductive endocrinologists, to hospitals, to lawyers, and matching agencies—it is most often the surrogates who get “nickel and dimed” in the words of a surrogate from South Carolina. Their compensation is the easiest place to “cut the fat” (Surrogate, SC). Of course, there are many parents so thrilled to have a baby that they would never withhold payments, decrease fees, or require—as a Massachusetts lawyer put it—the surrogate submit individual receipts from Whole Foods as a means of controlling the process.

However, for those empowered to make regulatory and policy decisions, these data flag places to address issues of unequal bargaining power, to prevent individual and organizational practices from exacerbating stratification in womb work emerging in a largely unregulated market. Given the flourishing but mostly unregulated baby market, law could have a significant role to play as norms, practices, and structures are constituted and institutionalized. In that spirit, I close with a former adoption lawyer from Maryland who now specializes in surrogacy. She expressed concern that new law school graduates entering the field do not fully appreciate the nature of this highly “commodified” exchange:

Even young lawyers entering this ambiguous field must be schooled on the complex, relational, risky, gendered, and potentially dehumanizing process of contracting for bodily services. This is critical as norms surrounding motherhood and women’s labor recalibrate. Lawyers play a key role in that constitutive endeavor. Only empirical research that captures the experiences of participants as they engage in exchange relations in an active but unsettled surrogacy market can inform best social and organizational practices for women and their womb work in the future.