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Introduction 555
I. Harm to Surrogate Mothers: Evaluating the Empirical Objection 558
A. Overview of the Empirical Objection 558
B. Empirical Evidence on Surrogate Mothers in the United
States 559
1. Demographic & Psychological Profile 560
2. Entering the Process 562
3. Relinquishing the Baby 562
4. Motivations 563
C. Counterarguments 566
II. Harm to Society: Evaluating the Normative Objection 568
A. Overview of the Normative Objection 568
B. Surrogacy as Implicating Social Anxieties 571
1. The Political and Social Context Leading up to Baby M...573
2. The Baby MCase as Encapsulating Social Anxieties 578
Conclusion 581
Introduction
In 1986, Mary Beth Whitehead refused to give up the baby she was carrying as a surrogate for Elizabeth and William Stem. Baby M,1 as the baby and the court case name came to be known, has become shorthand for the controversy around surrogacy.2 But, in the days following Baby M, it was Mary Beth Whitehead, the surrogate mother, who sparked the most intense debates over motherhood, women's roles, and family in American society.
Arguments against surrogacy focusing on the surrogate mother3 can be characterized as one of two types: (1) surrogacy is bad because it directly harms the surrogate mother; and (2) surrogacy is bad because it harms society, whether or not it harms the individual surrogate. The first line of argument has been empirically evaluated through study of the actual experience of surrogate mothers; the second line of argument is difficult to evaluate empirically because it alleges a less tangible, normative harm to society.
This Article suggests that the opposition to surrogacy was driven more by the second type of argument than the first, although critics made both with equal seriousness. Part I of this Article argues that the first line of argument, quite early on, was seriously challenged by empirical studies demonstrating that, in the vast majority of surrogacy arrangements, surrogate mothers have positive experiences, have no issues relinquishing the child, and want to be surrogates again.4 Yet, uneasiness with surrogacy remains: surveys of public attitudes indicate that the majority of Americans still disapprove of surrogacy and consider it the least acceptable use of reproductive technologies.5 Commentators and academics, moreover, continue to criticize surrogacy normatively without explicitly referencing empirical studies,6 extrapolating from outlier...