Mothering for Money: Regulating Commercial Intimacy

57 Pages Posted: 12 May 2013 Last revised: 7 Oct 2018

See all articles by Pamela Laufer-Ukeles

Pamela Laufer-Ukeles

Academic Center for Law & Science (Shaarei Mishpat College of Law); University of Dayton - School of Law

Date Written: May 12, 2013

Abstract

The payment for gestation resulting in a child, involving months of physical involvement for the surrogate and the transferring of a being from the womb of one woman to the arms of another is the quintessential exchange in commercial intimacy. It is commercial because it involves payment for services, yet intimate because it involves physical and emotional attachments and inter-dependencies, which are well-documented in empirical sociological accounts. In this article, I consider how to capture the many benefits that this commercial exchange in surrogacy engenders, including the documented satisfaction of surrogates and intended parents with the process and low rates of litigation, while simultaneously taking into account the high levels of intimacy and personal, emotional attachments involved, which elevate and exacerbate concerns about commodification and exploitation in these commercial exchanges. Accepting the reality of the existence of commercial exchanges in intimate concerns, I lean on notions of mixed commodification and the descriptive work of Viviana Zelizer, among others, to argue for regulation that protects the intimacy involved in surrogacy within a commercial context.

In the context of commercial surrogacy, among other possible regulatory provisions, I argue that the human dignity and vulnerability of the surrogate require contemplation of the possibility of legally enforceable post-birth contact between the surrogate and the intended family. This article also considers the relevance for this discussion of international surrogacy, a growing reality which should not be ignored in any modern conversation about surrogacy. By exploring the nature of international surrogacy through the most common destination of India, I describe how international surrogacy exacerbates many of the potential commodification and exploitation concerns involved in surrogacy and, therefore, should be discouraged. I therefore consider what states should be doing to encourage domestic systems of surrogacy and discourage international surrogacy short of outlawing such procedures or refusing to accept babies born of international surrogacy into their borders which will only hurt the children involved.

Suggested Citation

Laufer-Ukeles, Pamela, Mothering for Money: Regulating Commercial Intimacy (May 12, 2013). Indiana Law Journal, Vol. 88, No. 4, 2013. Available at SSRN: https://ssrn.com/abstract=2263839

Pamela Laufer-Ukeles (Contact Author)

Academic Center for Law & Science (Shaarei Mishpat College of Law) ( email )

Hamargoa 5
Hod Hasharon
Israel

University of Dayton - School of Law ( email )

300 College Park
Dayton, OH 45469
United States

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