Book Review

Surrogate Motherhood: A Worldwide View of the Issues

N Engl J Med 1994; 331:685September 8, 1994

Article

Surrogate Motherhood: A Worldwide View of the Issues
By Diederika Pretorius. 239 pp. Springfield, Ill., Charles C Thomas, 1994. $54.75. ISBN: 0-398-05787-7

On October 1, 1987, a South African woman gave birth to her grandchildren. Her daughter and son-in-law had undergone in vitro fertilization procedures, and she had served as the surrogate mother to triplets. Two weeks later, the South African legislature banned surrogate motherhood. If the grandmother had given birth just one month later, she would have been a criminal.

In Surrogate Motherhood, the South African law professor Diederika Pretorius tries to make sense of the law's position on surrogate motherhood by providing a fleeting overview of laws and professional guidelines in other nations and an analysis in more depth of South African law. The book adds little to the current literature in the field (other than its South African analysis, which may not be sufficient to win over readers who thought that they were indeed getting a “worldwide view of the issues,” as the subtitle suggests).

One chapter is devoted to the international efforts to grapple with surrogacy, but it consists primarily of short descriptions of the actions particular countries and national commissions have taken with respect to the issue. Some of the descriptions do not even provide enough information to be useful. The sentence on the position of the American Civil Liberties Union (ACLU) on surrogacy, for example, merely says, “The ACLU specifically addresses the constitutional rights of all the parties to the agreement as well as those of the surrogate child.” It does not say what stance the ACLU takes. Is the organization for or against surrogacy? Who does the ACLU think should have custody of the child in the event of a dispute?

In addition to giving short shrift to the details of the various positions, Pretorius provides little evaluation of international trends. The reader is treated to snippets about how this group or that reacted to surrogacy, without any analysis of how these positions should be evaluated, their legal and social foundations, and why surrogacy seems to be so vexing to the legal and medical professions.

In the United States, the practice of surrogate motherhood is still surrounded by a great deal of controversy, even though fewer than 1 percent of such arrangements have ended in disputes. To some extent, controversy is to be expected any time a new approach is introduced for bringing children into the world. Nearly 30 years ago, in Infertility in Women (Philadelphia: F.A. Davis, 1966), Sophia J. Kleegman and Sherwin A. Kaufman observed that new reproductive techniques have “always elicited a response from established custom and law of horrified negation at first; then negation without horror; then slow and gradual curiosity, study, evaluation, and finally a very slow but steady acceptance.”

When donor insemination began to be used in a widespread way in the 1960s, it was viewed with such horror that a law was proposed in Ohio to criminalize the procedure and subject all the participants -- the doctor, the donor, and the couple -- to fines and imprisonment. The court in a 1954 Illinois case held that donor insemination was adultery, even if the husband consented. Since then, however, donor insemination has become widely accepted, and 32 states have enacted statutes to guarantee that the resulting child is legally the child of the recipient and her consenting husband.

Surrogacy may eventually follow donor insemination and win slow but steady acceptance. There is some evidence that the law is softening its stance toward the practice, particularly with respect to gestational surrogacy, in which the surrogate gestates the couple's embryo. In the 1993 case Johnson v. Calvert, the gestational surrogate changed her mind and wanted to keep the child created from the couple's egg and sperm. The court held that, because of both their genetic connection and the fact that they were the intended parents, the couple should be viewed as the child's legal parents.

Just as the notion of donor insemination as adultery was rejected in later court cases, the idea that women cannot competently choose to be surrogates was rejected in Johnson v. Calvert. The court stated:

The argument that a woman cannot knowingly, intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, to deny intending parents what may be their only means of procreating a child of their own genetic stock.

Because in both biology and the social meaning women's contribution to reproduction differs substantially from that of men, it is unlikely that surrogate motherhood will ever reach the same level of acceptance as donor insemination. But to the extent that the demand for the service is growing and at least some states seem willing to accommodate it, physicians will need to begin to think about the new issues of informed consent, medical and psychological screening, and decision making during pregnancy that contract motherhood raises.

Lori B. Andrews, J.D.
Chicago-Kent College of Law, Chicago, IL 60661