ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, January 7, 2011

Melanie Thernstrom on Surrogacy in the New York Times Magazine

Oocyte_granulosa_cellsTwo years ago, we posted about a New York Times Magazine article by Alex Kuczynski in which she recounts her experience as the mother of a child born through the use of a surrogate mother.  That article was problematic for reasons touched on in the previous post, which mostly focused on the criticisms directed at people who enter into surrogacy contracts and ended with the following plea: "Rather than simply bashing people who enter into surrogacy contracts, let's talk about the implications of the options."

The New York Times Magazine has now published Melanie Thernstrom's essay, "My Futuristic Insta-Family,"  aka "Meet the Twiblings" in the online version, which does precisely that.  In the article, Thernstrom briefly recounts her experience with infertility treatments and then describes how she and her husband decided to have two children using two different surrogate mothers.  Thernstrom's "Twiblings" were born five days apart.

For those interested in the topic, I recommend reading the article, because I cannot do it justice in a blog post.  What amazes me about Thernstrom's piece is that she manages to raise just about every issue relating to surrogacy contracts -- legal issues, moral issues, socio-economic issues, political issues, linguistic issues -- and she has something interesting to say about each one, but she does not try to provide satisfactory solutions to any of them.  She acknowledges that this stuff is messy and personal and that we lack the ability right now to figure a way out of the mess that satisfies all interested parties.  Such is life.  We muddle through.  

She also writes so well that I will not try to paraphrase her.  Rather here are some choice quotations that struck me as especially appropriate for this blog:

The legal status of surrogacy is varied. In a number of states, the status is unclear or surrogacy is prohibited. There were several cases of surrogacy in recent years in which the surrogate succeeded in keeping the baby despite an absence of any genetic connection. 

There are objections to it on the right, on religious grounds, as violating the natural order and the trinity of father-mother-baby, or as being part of a slippery slope that would lead to abominations like human cloning. There are objections on the left by those who say that surrogacy is exploitative and degrading for the women, irrespective of what the women who become surrogates say about it. (Some people believe only paid surrogacy is exploitative but unpaid surrogacy is fine.)

The role of a gestational carrier’s husband is, in some ways, more difficult than that of the carrier herself. The husband is, as Fie puts it, “a bystander to a miracle,” who partakes in the inconvenience of his wife’s pregnancy but has fewer emotional rewards (as well as the occasional negative reaction from a stranger whose congratulations for a new chip off the old block can turn to disapproval).

A childless friend of mine compared surrogacy to prostitution, saying that she personally would prefer to be a prostitute. 

We wanted to pay, because it made the relationship feel more reciprocal. There was one woman who responded to my surrogacy listing who said she didn’t want any financial compensation. . . . “That’s our contribution,” I said, flummoxed — “one of the things we can give back.” 

Third-party reproduction creates all kinds of relationships for which there are not yet terms. For example, there is no word to describe the relationship between our children and the carriers’ children, but it feels to me that they are, somehow, related. 

There is also no word to describe our children’s relationship with each other. 

 Not surprisingly, not every reader reacted positively to Thernstrom's article.  She responds to her critics here.


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