Document Type


Publication Date



One of the things that I find most puzzling about the question of surrogate motherhood is how easily many people answer it. One of the things that I have most admired about today's comments is their tone of constraint and their sense of complexity. I myself am sympathetic to the argument that the unhappiness of infertile couples is profound and that surrogacy contracts offer them the hope of an equally profound happiness. And I am prepared to believe that many surrogate mothers perform their part of the bargain without grief and even with gratification. Yet these benefits of surrogacy are only two of the dauntingly numerous elements of any calculation about whether surrogacy contracts ought to be legally permitted or legally enforced. To these benefits we may want to add, for example, the happiness of children who would not otherwise have been born and who have good homes and good parents. On the other hand, some surrogate mothers will become sick or even die because of the pregnancy. Some surrogate mothers will feel the sharpest kind of sorrow when they are compelled to give up their children or the sharpest kind of regret after they have willingly done so. The husbands of surrogate mothers will share those sorrows and feel some of their own. Children born of these contracts may feel some bitterness toward both their parents and even some confusion about who their parents are. A few children will be rejected by both parents. The siblings of children given up by surrogate mothers may fear for their own status in the family. Surrogacy might inhibit the adoption of hard-to-place children. The social consequences of treating children as objects to be sold and women as a means of production may be disquieting. And even if these were all the elements of the calculus, we might still wonder how to perform the calculation. How many contracting parents will be made happy? How many surrogate mothers will be made miserable? How many units of parental happiness are needed to outweigh the units of misery of one surrogate mother who changes her mind?

Included in

Family Law Commons