Free Market Feminism: Re-Reconsidering Surrogacy

Abstract

The COVID-19 pandemic has thrown the global surrogacy industry into chaos, stranding surrogates,infants, and their caretakers across the world from the intended parents. As surrogates and staff are left caring for infants that are strangers to them by law, the emotional toll of commercial surrogacy is more visible than ever before. In this article, I argue that this moment is ripe for reconsidering our laissez faire approach to for-profit reproduction. When the Baby M case hit the news in 1988, it set off a chorus of alarm among feminists (and others). Many states subsequently passed laws banning commercial surrogacy. Yet in the years since then, the dominant feminist position has quietly shifted. Surrogacy is now seen as a choice, one that expands women’s possibilities both as workers and as mothers. Surrogacy is also seen as an LGBT rights issue, as it provides a way for gay men to have children that are genetically related to them. However, the issues of gender, race, and exploitation that inflamed feminists in the1980s and 1990s are no less relevant today. As renewed concern with economic justice has made a resurgence on the national stage, I argue that it is time for socialist-feminist perspectives on surrogacy to reemerge. Eschewing freedom of contract as an illusory freedom that serves the ruling class, such a politics would demand social policy that limits commodification and promotes reproductive justice and freedom for all, not just the wealthy few.

Keywords: surrogacy, feminism, contracts, contract law, labor, neoliberalism, bodily autonomy, race, reproductive justice