Content uploaded by Zsuzsa Berend
Author content
All content in this area was uploaded by Zsuzsa Berend on Sep 22, 2022
Content may be subject to copyright.
https://doi.org/10.1177/00207152221094252
International Journal of
Comparative Sociology
1 –20
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00207152221094252
journals.sagepub.com/home/cos
IJ
CS
Individual responsibility or trust
in the state: A comparison of
surrogates’ legal consciousness
Elly Teman
Ruppin Academic Center, Israel
Zsuzsa Berend
UCLA, USA
Abstract
Drawing on ethnographic research in the United States and Israel, two countries that have long-term
experience with surrogacy, we compare surrogates’ understanding of, approaches to, and expectations
about regulation. Women who become surrogates in these two countries hold opposite views about
regulation. US surrogates formulate their rejection of standardized regulation—including standardized
screening and contracts—by emphasizing their own responsibility for the legal, relational, and medical
aspects of surrogate pregnancy. They want more oversight of fertility clinics and surrogacy agencies but
ultimately argue for individual accountability. Israeli surrogates, conversely, support centralized government
regulation of the practice and even defend Israel’s centralized regulation of surrogacy; many advocate for
the extension of the law and the state to assume more responsibility for these arrangements. We discuss
these differing formations of legal consciousness in terms of Engel’s conceptualization of “individualism
emphasizing personal responsibility” versus “rights-oriented individualism.”
Keywords
Comparative ethnography, neoliberalism, contracts, legal consciousness, regulation, surrogacy
Introduction
With the growth of transnational surrogacy in India, Mexico, Ukraine, and Russia, the lack of sur-
rogacy legislation has attracted scholarly scrutiny. This article contributes to the ongoing conversa-
tions about regulatory issues by focusing on two countries, the United States and Israel, where
compensated surrogacy arrangements were practiced long before the global “surrogacy boom” and
which represent two very different approaches to legislation. We explore regulation from “the
ground up” instead of simply documenting various regulatory absences and hurdles as much of the
Corresponding author:
Elly Teman, Department of Behavioral Sciences, Ruppin Academic Center, Emek Hefer 4025000, Israel.
Email: ellyt@ruppin.ac.il
1094252COS0010.1177/00207152221094252International Journal of Comparative SociologyTeman and Berend
research-article2022
Surrogate motherhood - Original Research Article
2 International Journal of Comparative Sociology 00(0)
scholarship does. Rather, we investigate relational contexts and surrogates’ notions of risk manage-
ment through the lens of legal consciousness, defined as “the ways in which people experience,
understand, and act in relation to law” (Chua and Engel, 2019: 336). This approach allows for a
broader understanding of surrogates’ concerns about varied pregnancy-related health hazards and
clinical practices as well as their responses to them. While regulation is discussed at length in the
legal scholarship, it has not been addressed from the perspective of the “communities of meanings”
(Chua and Engel 2019: 347) surrogates create through various forms of communication, including
online forums and social media. In the following, we argue that the “ground-up” approach better
explains practices than the scrutiny of laws on the books alone can, given that practitioners support,
challenge, or circumvent legal regulations based on their notions of right and wrong.
The data for this study come from our respective ethnographic research conducted over several
years in the United States and Israel. Methodologically, we adopt a comparative case method that
focuses on the varied yet systematically different experiences of surrogates with regulatory insti-
tutions in both countries. There are many similarities between the two social contexts in these
highly developed countries, yet participants’ approaches to the almost diametrically different
regulatory contexts can be traced to some key socio-political differences. Findings from our
respective studies show that regulation is best understood in its own socio-political context and
practitioners’ worldviews and perceptions of events and situations are central to their cooperation
with or challenging of legal practices. We ask: how do surrogates in the United States and Israel
view regulation, how do their views reflect and support their understanding of surrogacy and how
do these conceptualizations link up with larger socio-political developments? How is surrogates’
legal consciousness configured differently in these two contexts? What can a comparative assess-
ment of the ethnographic data contribute to discussions of surrogacy legislation and practitioners’
approaches to it?
We are not advocating for or against surrogacy but are interested in how surrogates evaluate
surrogacy practices and their organization by the state and other actors. Our findings indicate that
US surrogates define surrogacy as a private “journey” of a surrogate and intended parent [IPs] and
emphasize individual responsibility for navigating regulatory hurdles and making the right deci-
sions, even if it means finding legal loopholes. Conversely, Israeli surrogates define surrogacy as
an intimate “journey” of surrogates and IPs with the state as a chaperon. While US surrogates
emphasize individual responsibility and generally reject federal regulation, including regulation of
who can contract with a surrogate, Israeli surrogates emphasize the state’s responsibility to facili-
tate, and protect those involved, and advocated the extension of state regulation to include previ-
ously excluded citizens, such as gay men. However, in both countries, surrogates are not financially
destitute and consider themselves the IPs’ social, if not necessarily economic, equal.
We make a twofold argument. Surrogates’ views of regulatory practices can contribute to a
nuanced understanding of practitioners’ meaning-making and decision-making behavior and to our
understanding of how socio-political context shapes legal consciousness. Our findings show that
views on regulations are embedded in broader understandings of the state, its role, and the relation-
ship between state and citizens.
Literature review
Early work on surrogacy, influenced by radical feminist theory, advocated strongly against surro-
gacy, viewing it as a form of subordination and exploitation of women’s bodies under patriarchal
technological regimes, comparable to prostitution and slavery (e.g. Corea, 1985; Rothman, 2000).
More recently, India has attracted the most interest, as its surrogacy practices seemingly fit the
scenario earlier feminists have outlined. Scholarship, focusing on transnational surrogacy, has
Teman and Berend 3
highlighted not only the underlying inequalities of assisted practices but also the consequences of
inconsistent or nonexistent regulation (e.g. Deomampo, 2016; Majumdar, 2017; Pande, 2014;
Rudrappa, 2015; Saravanan, 2018; Vora, 2013). Increasingly, scholars have studied other transna-
tional surrogacy markets such as Mexico (Hovav, 2019; Schurr and Militz, 2018), Thailand
(Whittaker, 2014), Ukraine (Siegl, 2018), and Russia (Weis, 2017). Scholarship on these newer
surrogacy markets continues to highlight the exploitative potential of surrogacy while simultane-
ously challenging the notion of surrogates as predestined victims.
The abovementioned scholarship on surrogacy in newer reproductive markets describes what
surrogacy looks like in the absence of regulatory protection, illuminating its potential harms. Much
of the focus is on transnational practices and inequalities and the commodification and marketiza-
tion of bodies and reproductive potentials (e.g., Hovav, 2019; Schurr, 2018; Weis, 2017). However,
the national context these studies reveal is one of profound socioeconomic inequality; surrogacy is
the best-paid option of “work” for the women who do it and who are often in financial straits. As
concerns about exploitation are raised (e.g., Pande, 2014; Rudrappa, 2015; Weis, 2017), critiques
of lack of regulation are often linked to calls for recognizing the “obscured labor” of surrogacy that
Jacobson (2016) considers akin to employment.
While scholars generally consider regulation of payment and surrogates’ and IPs’ rights neces-
sary, they usually prefer increased regulation to limit the practice rather than support it. What is
missing in these perspectives is the analysis of how the participants themselves make sense of the
practices in which they engage and the experiences they have while doing so. Rather than taking
for granted institutional and regulatory practices, we analyze how surrogates embrace, challenge,
and at times even subvert these practices, thereby creating more complex situations of the interplay
between institutional practices and meanings. Our data speak to local, rather than transnational,
developments, and we aim to add to the scholarship by focusing on local meanings and their practi-
cal outcomes.
Our respective data indicate that surrogates have been in many ways engaged in the process of
the formation and stabilization of the meaning systems that guide evaluations and actions. Legal
meanings are one particularly salient element in the “normative universe” surrogates create and
maintain (Cover 1983: 4). As Cover (1983: 8) argues, “law is a resource in signification that ena-
bles us to submit, rejoice, struggle, pervert, mock, disgrace, humiliate, or dignify.” As it turns out,
US and Israeli surrogates submit to, rejoice, and struggle against as well as at times pervert differ-
ent elements of their respective legal systems. Yet in both countries, there are relational issues that
surrogates consider to be outside of the law’s jurisdiction, belonging to the private moral sphere, as
we will argue.
Silbey (2005: 334) defines legal consciousness as “the search for forms of participation and
interpretation through which actors construct, sustain, reproduce, or amend the circulating (con-
tested or hegemonic) structures of meaning concerning law.” Legal consciousness is shaped within
local cultures and shapes not only how people think about law—their ideas and opinions—but also
what they do; it is “a type of social practice, in the sense that it reflects and forms social structures”
(Silbey 2005: 334) and plays a role in the construction of the authority and hegemonic power of the
law.
People’s understanding of the law takes the form of cultural practice (e.g., Conley and Barr,
1990; Engel, 1984; Ewick and Silbey, 1991; Marshall and Barclay, 2003). Such cultural practices
take place in specific contexts and are informed by specific historical and legal developments. For
our purposes, it is useful to distinguish between what David Engel (1984: 558) called “rights-ori-
ented individualism” versus “individualism emphasizing self-sufficiency and personal responsibil-
ity.” Rights-oriented individualism is compatible with, indeed calls for, legal compensation,
remedies, and protection, while individualism emphasizing personal responsibility calls for a
4 International Journal of Comparative Sociology 00(0)
personal evaluation of risks and protection against them. Risk means calculated uncertainty; it can
be understood as a “relational order through which connections between people, ‘things’, and ‘out-
comes’ are constituted” (Boholm 2003: 175). The very notion of risk is tied to aspirations for
control (Giddens, 1999). Personal responsibility for risk management suggests that the individual
should have considered the situation and possibilities more carefully and has primarily herself to
blame if things go wrong.
Engel’s formulation informs our comparative analysis of the legal consciousness of US and
Israeli surrogates. We suggest that the collective meaning of risk management negotiated among
US surrogates in our sample reflects the personal responsibility approach. The pervasive cultural
ideal of self-sufficiency in the United States has been reinforced by the neoliberal insistence that
people are responsible for the outcomes of their actions, success as well as failure, and the legal
organization of surrogacy, which we will discuss subsequently, “allows” the parties to surrogacy
quite a lot of room for taking responsibility for risk management. In the US contexts, many surro-
gacy-related risks are “manufactured risks,” that is, uncertainties and risks created by technological
and medical developments, much less confined to collective life than dangers and hazards in tradi-
tional societies (Giddens 1999: 4). Given that the neoliberal turn means that even traditional haz-
ards become matters of individual responsibility, we should not be surprised by the emphasis on
individual responsibility in surrogacy, where new risks are created by medical technologies.
Israeli surrogates’ legal consciousness, conversely, incorporated the rights-oriented approach,
informed by both nationalist and individualist discourses in which extensive state funding for fer-
tility treatments is justified both as “an issue of core national values of the Jewish State” and an
issue of individual “emotional rights” to well-being and “civil rights,” particularly the “right to
parenthood” of Israeli citizens (Gooldin, 2013: 93). Kahn (2000), Gooldin (2013), Birenbaum-
Carmeli (2016), and others discuss how high rates of support for fertility treatments (particularly
in vitro fertilization [IVF]) are legitimized consensually by Israeli legislators, policy makers,
patients, and the media as civic entitlement to state-funded “lifesaving” services to suffering infer-
tile citizens (see Gooldin 2013). The discourse of national, civil, and emotional rights of infertile
Israeli citizens to become parents with state assistance played a central role in the legalization of
surrogacy in the country in 1996 (see Gooldin 2013; Teman 2016) and is expressed in contempo-
rary debates on the citizenship rights of gay men in relation to surrogacy (see Lustenberger, 2017).
Thus, in the nationalist and rights-oriented framework, risks associated with assisted practices are
treated more similarly to collective hazards, “accidents of fate,” rather than “manufactured risks”
associated with the expansion of personal choice (Giddens 1999: 4, 5)
The context: Surrogacy regulation in the United States and Israel
In this section, we highlight the almost diametrically opposite national regulatory approaches that
make it compelling to compare the two countries that otherwise share many similarities in terms of
how surrogates organize and understand the relationship with the intended parents.
The United States has no federal surrogacy legislation; every state regulates it differently and
some refrain from regulating it altogether. Regulation pertains only to contracts, although not in
terms of its provisions; states may regulate who can enter a surrogacy arrangement, whether tradi-
tional (in which the surrogate is the genetic mother) or only gestational surrogacy (in which she is
not) is allowed, and if compensation is allowed or not. Surrogacy contracts are legal in some states,
not in others, and many states fall into a regulatory vacuum. Eleven states permit surrogacy for all
parties (“surrogacy-friendly states”). Three states prohibit surrogacy; six states neither allow nor
prohibit surrogacy, and in two of them surrogacy contracts are invalid (https://www.creativefami-
lyconnections.com/us-surrogacy-law-map/). In the rest of the United States, surrogacy is practiced,
Teman and Berend 5
but regulation varies greatly in substance. Parentage can be established by prebirth order or after
the birth by court ruling as legislated by states.
The lack of federal legislation allows a commercial market of unregulated private surrogacy
agencies and fertility clinics to prosper, especially in “surrogacy-friendly” states, such as California.
Most of the states that allow commercial surrogacy do not limit who can contract with a surrogate
nor specify the requirements for contracts or screening. Surrogates and IPs negotiate the conditions
of their arrangement through an agency, a lawyer, or privately, albeit with legal assistance. Lawyers
have increasingly become specialized and draw up detailed contracts for review and revision, thus
progressively standardizing the process of risk assessment (Berk, 2020).
Conversely, surrogacy in Israel is tightly regulated and monitored by comprehensive state leg-
islation. The whole screening process, culminating in the signing of the surrogacy contract, is regu-
lated by a government committee. Both surrogates and IPs must be Israeli citizens or permanent
residents of the same religion (nearly all applicants are Jews) and cannot be related to one another.
The practice is not officially encouraged by the state but is a “last resort” for genetic kinship.
Only gestational surrogacy is allowed, and at least one intended parent must be genetically linked
to the child and until recently was limited to married, heterosexual couples with medical issues or
a history of repeated unsuccessful attempts at pregnancy. As a result of increasing popular pres-
sure, the surrogacy law was amended in 2018 to permit single women (or lesbian couples), using
donor sperm, to contract a surrogate if they meet the criteria. In 2021, a further amendment allowed
single men and gay male couples to enter surrogacy arrangements, effective in 2022, using donated
ova. The children born are full citizens, and the IPs are recognized as parents once a parental order
is granted following the birth. A striking difference between the United States and Israel is that
Israeli women cannot enter a private surrogacy arrangement within the country independent of the
government supervisory committee—indeed, this is a punishable crime—while surrogates in the
United States can enter “independent or indy” arrangements (without agency mediation, although
almost always with legal representation).
Method
Similar to Inhorn et al.’s (2018) comparative study of egg freezing among Israeli and US women,
we find the binational ethnographic investigation of surrogates’ understanding of regulation fruit-
ful because it sheds light on patterns of the interplay between national legislation and legal con-
sciousness. We compare two practices and surrogates’ views on them, namely, in phase 1, the
medical and psychological screening of the parties and, in phase 2, the contract, as they are or are
not regulated in the two countries. By comparing both practices and stances and analyzing inter-
connections, we aim to flesh out the “grounds-up” approach in its local social context.
This article draws from each of the authors’ research on surrogacy. While expanded upon else-
where (Teman, 2010, 2019; Berend, 2016), the following is a brief outline of the methods for the
studies. The Israeli study included in-depth, open-format interviews with 20 Jewish-Israeli surro-
gates who gave birth between 2014 and 2016. All were married and had two or more children.
Interviews were conducted in Hebrew in the surrogate’s home and lasted an average of 1.5 hours.
Additional data were collected by following the hashtag #surrogatebychoice (in Hebrew,
#pundekaitm’bchira) from public Facebook posts by 40 surrogates during the summer of 2018 in
response to proposed changes in the surrogacy law.
The US study, conducted from 2002 to 2013, employed online ethnographic observation of
www.surromomsonline.com (SMO), the largest and most important mediated public surrogacy
website in the United States; most of the data for this article came from the last 4 years when dis-
cussions of regulatory issues multiplied. Berend also exchanged emails with 35 SMO surrogates,
6 International Journal of Comparative Sociology 00(0)
asking about their take on contentious threads and for clarifications of some SMO stances.
Responses provided useful clarifications and insider interpretations of SMO interactions.
The overwhelming majority of surrogates who posted stories, questions, information, and
advice on SMO message boards live in the United States, and this study contains only US surro-
gates, from many different states. Nevertheless, it is important to point out that not all surrogates
in the United States participated in SMO. Most SMO surrogates are married, a mix of traditional
and gestational surrogates—although mostly the latter and some did both—who carried for gay
and heterosexual couples and single men, frequently from another state or even another country.
All surrogates in the sample had completed one or more surrogacy, were pregnant, or had started
the process. Berend did not encounter anyone on SMO who was denied as a surrogate; accounts of
denial in one clinic also contained news of acceptance at a different clinic.
We both used open coding to tease out the implications of our data, followed by axial coding to
compare data across observations and interviews, and bring the conceptual dimensions into sharper
focus. We wrote thematic memos to reflect on the data and its variation. We wanted to understand
how surrogates themselves attach meaning to surrogacy. These meanings in turn inform surrogates’
actions and have consequences for the practice of surrogacy. All names are pseudonyms.
Practices and meanings
Screening and private evaluations—United States
Physical and psychological screening is managed by agencies, clinics, lawyers, surrogates, and
sometimes even intended parents. Agencies and clinics mandate such screening and testing of sur-
rogates and often IPs as well, although they generally require more from surrogates than from IPs,
and sometimes do not require much testing of repeat surrogates. Testing and screening are by no
means uniformly strict. “The psych eval was a joke compared to what I have heard from other SMs
(surrogate mothers). My husband and I went to a psychiatrist’s office and talked to her for an hour
about what we expect to happen during and after the surrogacy—Then we were done! I am glad we
didn’t have to go through the MMPI (a psychological test that assesses personality traits and psy-
chopathology), it was in and out,” wrote Amy. Judging from discussions, psychological screening
was often pro forma. “I had my psych evaluation done the morning of the day I flew out to meet
my IPs and sign contracts,” posted Ashley. Similarly, in her fieldwork in a Los Angeles clinic,
Guerzoni (2020b) found that while the physical testing was extensive, psychological evaluations
were done in a 30-min telephone conversation.
The American Society for Reproductive Medicine’s (ASRM) guidelines (Recommendation for
Practices, 2016) notwithstanding, physical and psychological screening and testing varied by
agency, clinic, and administering practitioner. The results were shared with IPs. ASRM recommen-
dations include a thorough psychological screening of the surrogate and her partner as well as
testing for Hepatitis C and B and for sexually transmitted diseases. Some surrogates reported that
their husbands only had to have a blood test to screen for HIV. Surrogates normally had to take
several STD tests and undergo a gynecological examination. “You might have to have a saline
ultrasound or an HSG [special x-ray using dye to look at the womb and fallopian tubes], they do
bloodwork . . . From what the agency told me it is rare that someone ‘fails’ these tests although
they could possibly find things (i.e., polyps) that would delay transfer,” responded Carrie to a ques-
tion about what to expect. Lori commented: “It really depends on the RE [reproductive endocri-
nologist]. Some are stricter than others. Our RE had few guidelines.” Monica opined that the
screening is “mostly a check for complications during the pregnancy. They just want to make sure
on paper at least it looks like you should have a simple and straightforward pregnancy with no
Teman and Berend 7
complications anticipated.” Some women recounted that they were rejected because they were
“fluffy” (high body mass index or BMI) or had “too many cesareans,” while others reported that
their REs did not care about weight or previous cesareans. Women who failed to pass screening or
testing at one agency or clinic often got advice on SMO about where else they might succeed;
many posts testify to such successes.
SMO surrogates often understood variation in clinical and agency practices as possibilities for
creative action to evade restrictions or requirements they considered unhelpful. Their perspective
on the rightness of medical practices was central to assessing the legal legitimacy of such practices.
The rightness of practices, SMO discussions reveal, was most often evaluated based on surrogates’
assessment of and trust in their own physical and emotional abilities. Tiffany expressed this senti-
ment succinctly: “I have learned that I know my body much better than the doctors. I felt that I
could be pregnant successfully again and I was.” Surrogates both trusted and mistrusted medical
practitioners. They celebrated “medical miracles” and wanted safe pregnancies and birth, and quite
uniformly welcomed more ultrasounds. Yet they also emphasized their own fertility resources and
knowledge, much like a badge of distinction that made them “great surros.”
Surrogates all had to sign informed consent forms; it is the physician’s responsibility to inform
the surrogate about medical risks. Information includes descriptions of the procedures and non-
guarantees of success, unknown side effects of the hormones and other medications, risk of abnor-
mal pregnancy, and possible complications (Austin and Brisman, 2013). Informed consent,
however, can also serve as a neoliberal mechanism of transforming citizens into rational decision
makers, responsible for their life choices (Rose, 1999), and thus transforms pregnancy-related
hazards into “manufactured risks” women take on by choosing to become surrogates. While it is
understood to be the key to respecting individual autonomy, meaning privacy, voluntariness, self-
mastery, and accepting responsibility for one’s choice, informed consent does not guarantee indi-
vidual autonomy; it protects choices made without sufficient critical reflection as much as other
choices (O’Neill, 2003). The legal standard governing informed consent varies by state, but there
is no requirement that all conceivable or commonly known risks be disclosed. Assisted procedures
are lucrative business; dissuading women, unless risk factors are obvious, may go against the
clinic’s self-interest, as we see from the practice of some of them accepting women turned away by
more scrupulous clinics. Learning about the risks and taking full responsibility for one’s choices
resonated with surrogates. SMO discussions often warned newbies that unless they educated them-
selves about the medical issues involved, they had no business being surrogates.
SMO surrogates were on board with their agency- or clinic-mandated physical and psychologi-
cal screening and testing, even when strict, yet also maintained that no screening could replace
personal contact through which IPs and surrogates should get to know and trust one another.
Surrogates debating a suggestion about standardized evaluation riled against it and defended the
private nature of surrogacy relationships: “My character, personality, morals, beliefs, feelings and
emotions define me. NOT someone’s ‘assessment’ of me . . . Either get to know me and decide for
yourself or go away” (emphasis in the original).
IPs’ screening, when done at all, differs by agency/clinic. Since our data do not directly speak
to IPs’ screening and testing, it is impossible to say how much of the ASRM’s long list of recom-
mended screening and testing is ever done. ASRM guidelines recommend thorough genetic and
medical evaluations and that IPs be screened the same way as gamete donors are. However, SMO
data reveal cases when surrogates miscarried several times before IPs—who had lost several preg-
nancies themselves—underwent genetic testing that showed abnormalities. Numerous stories on
SMO document the lack of comprehensive evaluations. Other studies corroborate these findings.
Guerzoni (2020b) found that one of the clinics she studied did not screen IPs, many of them inter-
national couples. Zaina Mahmoud’s (2021) data from five California agencies and interviews with
8 International Journal of Comparative Sociology 00(0)
several surrogacy lawyers and surrogates reveal that in most cases IPs were not screened and
tested.
However, not all surrogates deemed thorough screening and testing of IPs necessary. Many saw
such practices as unfair, saying that people who produce children without assistance never have to
undergo such examinations. Data show that surrogates often considered IPs’ screening on a case-
by-case basis, in the context of their relationship. When Jess reported that her intended father [IF]
was “dragging his feet” and seemed “only to do it for the IM [intended mother],” fellow surrogates
agreed with the following advice: “Do not proceed without taking a look at the resources (contract,
psych. screening) that are available to you [to better assess the situation]. Not everyone needs to
use the resources, but it sounds like you may.” Some others advised Jess to “talk it over with the
couple.”
SMO discussions reveal the collective definition of surrogacy as a private arrangement between
two families, even if it involves various strangers, such as medical professionals, lawyers, and
agency personnel. Surrogates agree that procreation is by definition private and assisted reproduc-
tion is a necessary measure in the pursuit of children, interference in the private lives of couples
who are already “traumatized by so many failures and losses” and “who have already suffered so
much.” Yet couples’ private intentions, when turned into actions with a surrogate’s help, “create
families” and involve public legal actions and legal understandings.
Screening and the trusted state—Israel
Contrary to US surrogates, Israeli surrogates supported comprehensive state regulation of screen-
ing. They viewed surrogacy as a state-mediated arrangement between two families. Their approach
can be better understood in the context of Israeli health policy on reproductive technologies. Israeli
national health insurance covers unlimited IVF attempts without any restrictions on marital status,
sexuality, or religion for women using their own or donor eggs up to age 54. National health insur-
ance also covers all prenatal care and hospital births; all medical expenses related to IVF and the
pregnancy are covered in surrogacy as well. Thus, the state is already a central actor in assisted
reproduction.
Before signing the contract, surrogates and IPs undergo comprehensive psychological and med-
ical evaluations, receive separate legal counsel, and must attend together a medical explanation of
the risks of all medical procedures. After documents are submitted to the surrogacy committee, the
surrogate and her husband are interviewed by committee representatives, and the contract is signed
before all nine committee members. All Israeli surrogates undergo the exact same centralized
bureaucratic process. It is a long and arduous path that tested their patience and endurance. Hanna
said: “It took a really long time, the bureaucracy can take three months, it can take a year. Because
the committee needed all sorts of documentation. . . . All sorts of things delayed it.”
Unlike in the United States, there is no way to circumvent the committee’s decision if a candi-
date did not pass the screening process. Zohar explained how she viewed each stage as a difficult
obstacle course:
There are loads of tests. . . . I said there would probably be something that would fail me along the way. I
passed the blood test. Then there are uterine lining thickness tests, [I thought] “I won’t pass that,” [but] I
passed. Then a gynecological examination, there will probably be something . . . I passed. And then the
psychologist, I said for sure I won’t pass the psychological evaluation, but I passed it too. Then we met the
couple and there was a connection and a click . . . Then I met with the committee which I was also not sure
I would pass, and I passed the committee too.
Teman and Berend 9
Surrogates’ husbands also had to undergo an HIV test, psychological evaluation, and be present
during a mandatory explanation of the medical process and all possible risks as well as at a meeting
with an insurance agent regarding the surrogate’s mandatory coverage. Rena reported that when
she was probed about the medical risks in the committee interview, “they didn’t think I was aware
enough and made me go to the fertility doctor again . . . Only after he explained it all to me again,
they let me pass.” In a public Facebook post, a surrogate noted that the committee’s insistence that
she learn all of the risks, including death during childbirth and possible loss of uterus, only con-
firmed her decision:
I learned there are many things that could harm me and my family and that no sum in the world is worth
it. But most of all I understood I am going to make this couple’s dream come true and all the rest doesn’t
matter to me.
Surrogates reported that the psychological evaluation and the subsequent committee interview were
especially difficult. They expressed pride in having “passed the committee’s tests,” often comparing it to
a criminal investigation, university entry exams, or screening for an elite military unit. “I don’t think even
fighter pilots can pass these tests,” said Hila.
Raz felt the committee was so selective and demanding that it seemed as if they were looking
for reasons to screen her out and even to dissuade her:
There is the psychological evaluation, and it is not a sure thing to pass it, because it is really not easy. It’s
a four-hour meeting . . . I may be a normal, sane person but from the questions you are asked, from the
tests they give you, you say “there’s no chance.” But I passed that too. Then you submit everything to the
Ministry of Health and then comes the most stressful part when you are sitting in front of the committee
and you feel like they are trying to fail you, not supportive but the opposite, to convince you not to do it.
. . . they give you all the answers for why you shouldn’t do it. A thousand and one reasons. (You are told)
you can get depressed . . . your kids can take it very hard . . . there can be complications and it can damage
your fertility.
Yet, instead of considering the state screening process as invasive and paternalistic, most sur-
rogates viewed it as essential gatekeeping that protected women from making a mistake. Many of
them were grateful for the committee’s strict screening as it reinforced their confidence in their
decision to become a surrogate. Leah said,
It is a conversation in which you convince them how much you really want this. And it also makes you
have a sort of inner accounting with yourself about why you are doing it. If a woman is not completely sure
about it, they can get her to reconsider the whole thing. But it just proved to me how much I was ready.
Hanna, too, rethought and subsequently reaffirmed her decision: “The committee really checks . . . They
really sit there and dig into you. It makes you think—is this really what I am choosing to do?”
Gal justified the stringent screening process as the state’s “job” in making sure her family is
ready for this “family project” (Teman and Berend, 2021), despite her surprise at the depth of their
questions:
I didn’t imagine that the committee would give me such a cross-examination. I arrived very relaxed and
open. . . . They asked how the kids would cope, so I told them that my daughter was already under
psychological care for other issues so it will be fine. That worried them, they said they needed to speak to
her psychologist to see how it would affect her . . . And then they put a lot of pressure on my husband
10 International Journal of Comparative Sociology 00(0)
about how he is responding . . . I don’t blame them, they did their job, that’s fine. I think they’re doing it
to have some sort of indication to see if people are not ready for the process.
Similarly, other surrogates had to undergo further steps in the screening process following the com-
mittee interview. Surrogates did complain about the runaround and bureaucracy, as well as the time
it took to satisfy all the stressful and arduous screening requirements, but they all justified the
screening as the state taking responsibility for minimizing the possible risks for surrogates. Their
position may be contingent on having eventually given birth to a surrogate baby. Statistically
approximately half approved contracts end in live births (Teman 2019); it is beyond the scope of
our study, however, to know if those who do not give birth may have different views of these
regulations.
While in the United States informed consent practices vary by state and practitioner, and some
clinics may primarily protect themselves from lawsuits, the Israeli surrogacy committee covered
all foreseeable eventualities because it is the state itself that is accountable. Having directly author-
ized the agreement, the Health Ministry could be sued by a surrogate contending that the state did
not protect her. Thus, while SMO surrogates emphasize individual responsibility for knowing the
risks involved, Israeli surrogates look to the state for educating and protecting them as citizens
entering these arrangements.
A particular understanding of privacy underlies surrogates’ responses to the necessary sharing
of their psych evaluations; many viewed it as unproblematic that it should be shared not only with
state officials but also with IPs. Carrine viewed the exchange of psych evaluations as initiating a
bond with her IM: “Already then we realized we had this connection.” Maya spoke about how both
she and her IM were very private people who liked clear boundaries in the surrogacy relationship,
but privacy concerns did not seem to influence her perception of the selection process, noting she
too realized how well they were matched from reading her IM’s psych evaluation:
Before we met with the couple, they got the report the psychologist wrote about us and we got theirs. And
then we actually got a picture of who they are . . . Then I realized that she was not a person who likes her
privacy invaded and neither am I.
Rather than an infringement of her privacy, Maya saw evaluation-sharing as a way to get to know her IM
better and as proof of a good match, the state as akin to a good matchmaker.
Only one surrogate, Dvora, questioned the necessity of sharing her psych evaluation with the
IPs but did not question sharing it with the state committee:
You must bring a psychological evaluation to the committee . . . It goes over your whole life. The
psychologist asked me if the IPs want to see it, is it okay? . . . I said “it’s private. I’d rather not.” Everyone
has private things. When you go into such a very, very emotionally charged process everyone should be
allowed to open up at their own pace. [. . .] Then the committee passed it on to my IPs, without asking me,
without me signing any confidentiality agreement. . . . My privacy is transparent to the committee. I was
sure she (the committee coordinator) would apologize. No. She told me “they chose you, they need to see
it.” I kept saying “I chose them.” Like who’s choosing who here? . . . The committee has to decide whether
or not I’m qualified. Not them.
Dvora saw the state committee, not the IPs, as the final arbiter of acceptance, simultaneously highlighting
her active role in decision making. Israeli surrogates do not see state intervention as an invasion of their
privacy and are willing to submit to the terms defined and safeguarded by the state in exchange for state
protection. Like the SMO surrogates, they, too, conceptualize the relationship with their IPs as based on
Teman and Berend 11
equality, and understand trust-building as a private process of getting to know one another, but only after
the state has facilitated the match.
Contract and individual responsibility—United States
Signing the contract means the official beginning of the surrogacy “journey” in both countries, yet
the contract itself is understood in diametrically opposite ways. In the United States, SMO surro-
gates reject the definition of surrogacy as an “industry” with “standards” that should be defined and
enforced through federal regulation. They maintain that all the relevant contractual questions,
including the number of embryos to transfer, reasons for terminating the pregnancy, as well as all
financial issues, need to be discussed by the parties themselves, with assistance from their lawyers.
“In surrogacy, nothing is standard,” they insist, even as they compare contracts for their own infor-
mation. SMO surrogates contend that “a working uterus is not enough”; a responsible surrogate
gets informed about all aspects of surrogacy and gets to know her IPs before signing the contract.
“If a surro is taken advantage of in the US it’s her own fault. There are plenty of ways to educate
yourself about what you are getting into,” wrote Kim. “I feel these journeys are like our marriages.
It’s all about trust and honesty,” wrote Liz.
Thus, many surrogates think of the contract as a way to not only protect the parties but also work
out their private relationship: “It’s how you all handle the negotiations which will clue you in on
your future relationship and communications.” Contract discussions are stressful; if the parties
manage to reach an agreement and stay respectful and considerate it is a good sign for the future,
surrogates say, and the financial agreement should be the result of honest discussions about what
the surrogate’s family needs and IPs can afford. Berk’s (2020) analysis of surrogacy contracts
reveals that in most of her cases the compensation amount was left blank, to be negotiated, in the
increasingly detailed standardized contracts; the amount ranged between $18,000 and the outlier
$50,000; typically, compensation was between $25,000 and $35,000. SMO surrogates maintain
that a fair agreement must reflect the parties’ values and circumstances and specify what they are
comfortable doing for and during the pregnancy and after the birth. Countless threads address the
importance of carefully negotiating all the sensitive contract issues, even in states that do not
legally recognize contracts, in order to come to a mutually fair agreement and forge a good
relationship.
After reading many contract stories on SMO and debating provisions and wording, surrogates
increasingly realized that it was necessary to specify everything that mattered to them in detail.
Such specifications included payment schedule, fees above the base compensation, reimburse-
ments, proof of escrow, no cap on lost wages, childcare costs in case of complications, number of
cycles and number of embryos to transfer, agreement about selective reduction of multifetal preg-
nancy, and a detailed list of conditions for which the surrogate was willing to terminate the preg-
nancy. “Being on the same page” with IPs about these latter items was very important to surrogates
who often reported their insistence and success in revising the contract, urging others to not leave
things up to chance. Increasingly specialized surrogacy lawyers worked out longer and more
detailed contracts, but SMO discussions show the increasing demand from surrogates to do so.
Financial negotiations were one element of contract discussions and one aspect of risk manage-
ment. Monetary dealings were evaluated according to varied concerns, including fairness to both
parties, perceived individual needs, and symbolic meanings. Many women were willing to forgo
certain reimbursements because they felt bad “nickel-and-diming the IPs.” Such concerns had to
do both with some public representations of surrogacy as baby-selling and the intensely private
understanding of the relationship as helping “deserving couples who suffered so much” become a
family. However, most surrogates considered “every penny” of the compensation “richly earned,”
12 International Journal of Comparative Sociology 00(0)
arguing that pregnancy was unlike regular jobs because it meant “24/7” involvement and responsi-
bility as well as many unknown and unforeseeable risks and sacrifices for her whole family.
Symbolic meanings emerged from concerns about IPs’ appreciation associated with financial
negotiations. IPs’ attempt at bargaining with the surrogates was considered “disrespectful” and
“offensive.” “If you’re already low comp . . . lowering it further sort of makes you a clearance
special with a blue light flashing overhead,” wrote Mimi, arguing that no surrogate wants to be
devalued as a person. Surrogates realized, sometimes too late, after agreeing to lower their comp,
that money indicates valuation as well as payment. They warned that IPs’ bargaining can change
the relationship: “You start to feel like an employee. I haven’t met a surrogate yet who wants her
IPs to think of her as nothing more than a womb for rent, or paid employee, a bargain basement
surro.” IPs’ unwillingness to pay what the surrogate asks for could hurt her financially and is also
hurtful emotionally; to surrogates, it indicates a lack of consideration and appreciation, especially
since so many women went to great lengths to save money for their IPs.
Yet, over time, there was a noticeable learning curve. Increasingly, surrogates offered advice by
posting about lessons learned, much like Vicky below.
When I first met my IPs I thought we were perfect for each other. We even spent almost a year to get to
know each other better. . . . I lowered my comp for them out of my love for them. I left things verbally
agreed upon out of the contract, because I didn’t want to hurt their feelings. Things went terribly wrong,
and in the end our magical journey was nothing more than a business deal. We were to follow our contract
exactly, leaving some of my pregnancy expenses to come out of my already low comp. . . .
DO I BLAME MY IPs?????? NO! NO! NO! Is this thread created to bash my former IPs??? NO! NO!
NO!!!!!
It was my fault! I learned my lesson well!
Next time I will not be lowering my comp, and I will know exactly what needs to be in my contract . . .
Our data help contextualize Guerzoni’s (2020a) finding that the clinics that recruited mostly lower income
minority women and attracted foreign IPs who wanted no contact with their surrogate, raised the
standardized base compensation repeatedly, from $20,000 in 2015 to around $30,000 in 2019 for first-time
surrogates, and in 2020 to $40,000 to $50,000 for repeat surrogates, to be “competitive” in recruiting
surrogates. Without a relationship between IPs and surrogates, the compensation had no expressive
relational power and was easily standardized. Also, it seems, the increase reflects the full monetization of
the somewhat amorphous extra value that many surrogates derived from the relationship and IPs’
appreciation.
Most of the nonfinancial negotiations were about contingencies that can arise because of a lack
of comprehensive regulation. According to numerous surrogates, reproductive endocrinologists
often attempted to and succeeded in convincing surrogates, already in the clinic prepared for the
procedure, to agree to transferring more embryos than were specified in the contract, claiming
embryo quality issues. While acknowledging that “self-regulating” practices in US clinics (i.e., lack
of federal or state regulation) are often problematic, most SMO surrogates were distrustful of regu-
lation, as Mandy expressed: “I truly believe that for that [responsible clinical practices] to happen
. . . and this can be an ugly word around here . . . this industry will need better regulation. . . . But
regulation is a totally scary thought.” Interestingly, even military spouse surrogates in Elizabeth
Ziff’s study are hostile to federal regulation. These women, living under highly regulated condi-
tions because of their husband’s military career, prefer some oversight of agencies and clinics but
Teman and Berend 13
reject overarching government role in assisted practices, much like SMO surrogates (Ziff, personal
communication, July 2020).
Surrogates, who invariably said they wanted to give life and not take it, were often against
agreeing to selective reduction and terminating for any non-life-threatening condition. Even when
generally favoring more regulated clinical practices, surrogates also advocated for working out
embryo transfer questions in honest discussions with IPs during contract negotiations. Experts
notwithstanding, “I feel that ultimately it is my responsibility as to what is placed in my uterus,”
wrote Kelly. Others, like Kat, agreed. “If the surro agrees . . . on what the doctor recommends and
the IPs ok, then she is taking responsibility also.” The SMO advice was that she did not have to
agree. “You have to be your own advocate!”
Many contracts specified contact with IPs during pregnancy and after birth, although surrogates
came to realize that such provisions were not useful; several women advised against even having
such specifications. They all wanted a real rather than a forced relationship with IPs. No surrogate
on SMO ever reported having gone to court to enforce the contract when IPs cut ties.
The central concern for SMO surrogates was to make sure they see eye-to-eye with IPs.
Contractually listing all the possible contingencies, they increasingly insisted, was the best way to
be on the same page. Difficult negotiations were considered a bad sign for the relationship. Zoe had
an unpleasant experience during contract negotiations and advised another surrogate accordingly:
“I had to call my agency and tell them that I wasn’t playing “hard ball” with someone, I’m trying
to help create a family . . . if you’re not comfortable do NOT settle.” Zoe used the word “settle”
the way most women on SMO, and romantics in the dating world, did; “trust your gut feelings and
don’t settle for IPs you’re not fully comfortable with. There is a perfect match out there for you.”
While “match” is a word used in clinical settings as well, surrogates’ numerous comparisons
between surrogacy and dating indicate that the “perfect match” means more than a satisfying medi-
cal pairing.
In debates about what to do when a contract favors the IPs, surrogates overwhelmingly agreed
that fairness was essential; if IPs agree to a one-sided contract, there is no way to have a good
relationship. The noticeable learning curve was the result of many bad stories. While numerous
threads testified to a desire for a “wonderful journey” and “making deserving IPs parents,” surro-
gates also warned about bad outcomes and the importance of taking responsibility.
SMO surrogates’ understanding of surrogacy as a private arrangement for which they should
assume their share of responsibility was formulated within an institutional context that privileges
free-market models, although the federal government regulates drugs and medical devices, and
states license medical practitioners. The ASRM recommendations to fertility clinics are not bind-
ing and there are no sanctions against violators. In the absence of FDA regulation “pretty much
ANYONE can open a surrogacy agency,” as a prominent assisted reproduction attorney put it in a
SMO post (emphasis in the original). Many surrogates argued for more oversight of agencies,
while many others advocated being informed and cutting out the “middle-man.” For example,
Kelly noted . . .”I am good at doing my own leg work. I listen to the red flags.” Overall, many sur-
rogates agreed with the following popular post:
Surrogacy should be legalized in all states and there should be some sort of oversight of the running of it
(agencies, for example), but I think depersonalizing it . . . would be a mistake. I have spent 3 years of my
life within a personal journey with my IPs . . . It would be highly distracting to have such a beautiful and
personal process sterilized.
Surrogates wanted surrogacy-friendly legislation, unspecified “stricter oversight” of clinics and
agencies, but also, centrally, more individual responsibility and grassroots actions. They were in
14 International Journal of Comparative Sociology 00(0)
favor of circulating stories of unethical practices on SMO: “I’m so glad that you are getting the
word out and hopefully people will start talking, more info will come out, and then we can eventu-
ally get some regulation and lock up all of these shady agencies and REs!” These varied negotia-
tions and practices illuminate surrogates’ worldview about a normative order they are intent on
maintaining (Cover, 1983). In this worldview, the contract, a legal document, gained practical
value and legitimacy because it reflected private agreements made in the context of trust and
respect.
SMO discussions represent the view that responsible individual action rather than formal cen-
tralized regulation has the potential to keep institutional actors in check. The calls for regulation
are almost always accompanied by some cautioning: “[surrogacy] needs to be regulated but done
in such a way that it doesn’t hinder the process. It’s a slippery slope . . .” Most posts ultimately
reiterated that “If people would just use common sense and do their homework, stuff like this
[unethical or exploitative practices] can be easily avoided.” An oft-repeated conviction held that
“Whether you go indy or not, ultimately your journey is your responsibility to get right.”
Based on SMO evidence, we suggest that surrogates have an essentially neoliberal view of the
contract as the codification of a deregulated private exchange relationship and a “neutral medium”
for people to work out their differences and to “transact unlike values” (Comaroff and Comaroff,
2000: 39). SMO threads show that it is precisely the transaction of unlike values that surrogates
defend as central to their definition of surrogacy as a non-market, personal relationship. According
to them, a good journey is a “win-win” in which two families gain benefits they would not have
otherwise. Only the parties to the arrangements can know and articulate what their needs and pref-
erences are; if they cannot agree, they should not work together.
Surrogates consider lawyers helpful in the process but do not want government agents to control the
negotiation. For them, the morality of the arrangement lies in a fair agreement, the result of working
out personal differences, rather than in centrally regulated and standardized provisions. These findings
also dovetail with research findings by legal consciousness scholars that document Americans’ prefer-
ence “to handle problems by themselves, by talking with the other party, or by avoiding the problem-
atic situation” (Silbey 2005: 339). Caseload statistics show a similar picture; Americans are less
litigious than popularly believed. The great majority of civil cases are contract cases, and about 86
percent of them are debt collection cases and landlord-tenant disputes. Only about 4 percent of civil
lawsuits involve tort cases, the majority of them car accidents (CPC Court Statistics Project, 2018).
Contract and reliance on the state—Israel
The surrogacy committee reviews each contract; Israeli surrogates conceptualize the contract as
necessarily witnessed, mediated, and directly backed by the state. Although the committee does not
set limits on compensation and women can potentially negotiate higher compensation, most sur-
rogates receive 150,000 shekels (approximately $46,000). The committee requires that IPs cover
maternity clothes, house cleaning, travel to surrogacy-related appointments, babysitting expenses,
life insurance for the surrogate, and reimbursement of lost wages in case of bed rest during surro-
gacy. Also required is reimbursement for psychological counseling for the surrogate, her husband,
and children, if needed, up to 6 months post-birth or after termination of the contract. Surrogates
understand these provisions as protections. Payments are distributed each trimester, or monthly,
and if the pregnancy is lost after 24 weeks, the full sum is paid. Contracts specify confirmation of
escrow and extra payments for cesarean delivery, twins, fetal reduction, and also specify the num-
ber of embryos surrogates are willing to transfer, conditions for selective reduction and termina-
tion, and the maximum number of transfers (six) or maximum time frame of embryo transfer
cycles (1.5 years). Most surrogates said that they were happy with the standard contract. Hanna
Teman and Berend 15
explained: “The contract has a lot of really smart things in it. . . . The State of Israel, in the process
of surrogacy, turns out to be a very developed country . . . It’s well organized and there are all the
conditions.”
Even if a surrogate feels uncomfortable with some of the standard provisions, the committee
requires them, and many surrogates end up signing contracts that include protections or benefits
that they might have forgone otherwise. Hanna said,
Everything that you write in the contract makes you feel really greedy, and there are some standard things.
Like if the lawyer tells you that from the 38th week you get a cleaning person to come once a week on the
couple’s bill, it makes you say, “Wait, I feel uncomfortable taking more money from them.”
Nitzan explained how important it was for her that everything was listed in the contract so that
she did not have to negotiate directly. Like SMO surrogates, she, too, believed that the contract
affects the surrogate–IP relationship. However, rather than seeing contract negotiations as predic-
tive of the relationship, she sees the state’s mediation as enabling her and the IPs to maintain a
“purer” relationship:
It was very comfortable having the contract already made. I mean, there’s a standard contract that I don’t
have to deal with too much because to price something like that, I can’t, it doesn’t make sense to me. [. . .]
I also like that the sum is . . . in an escrow account and from that moment we don’t have to deal with the
money . . . We are able to focus on our connection, pregnancy and things that really matter. So, for me it
was just the way I needed it to be, that someone determined it, and I didn’t make too many changes to the
contract, I didn’t feel the need. I did go over the contract thoroughly. Every surrogate needs to sit down and
know exactly what she is getting into and go through the contract and understand each and every clause
. . . but basically the contract covers everything [. . .] God forbid there [are] . . . all kinds of things we do
not want to think about [. . .] So it’s good that everything is agreed upon before. . . . There is also a section
that the surrogate and her family are entitled to psychological care up to six months after birth. And I don’t
have to ask anyone for it . . . I can just send in a receipt and get the money . . . I really believe in this
contract, it is powerful and important in this process.
Israeli surrogates not only defended the surrogacy law but also advocated for its extension. In a
grassroots collective effort organized through private Facebook and WhatsApp groups for “surro-
gates only” in the summer of 2018, over 40 Israeli surrogates joined in posting public testimonies
supporting the extension of the law to gay men. All posts were public and shared widely, some
reaching circulations in the thousands. These messages were directed to Israeli society but particu-
larly to government officials. Surrogates also went on radio and television talk shows, wrote op-
eds, and posted videos online.
In their posts, surrogates claimed that it was the country’s national duty to extend the surrogacy
law so that gay men would not have to pursue surrogacy in countries where surrogates’ rights are
less protected than in Israel. Dalia pointed out that Israeli state involvement in surrogacy was supe-
rior to unregulated practices:
The bureaucratic procedure, the supervised inspection of the process and the psychological assessment
that are strictly observed in Israel prevent any chance of exploitation . . . Surrogacy in third world countries
is another story and it is sad. As long as the Israeli surrogacy law is not extended, we are forced to continue
to be part of that exploitation.
Hadar, in a widely circulated post, attested to the benefit, as she saw it, of the state’s responsibil-
ity to make sure that the surrogate knows what she is getting into:
16 International Journal of Comparative Sociology 00(0)
At the final stage, just before signing the surrogacy agreement, is a piercing conversation with members of
the committee—a doctor, a psychologist, a lawyer, another lawyer, and another lawyer. Everyone is there
to make sure the woman chooses this path with a clear mind and not for lack of clarity, is aware of all the
risks and possible repercussions. They make sure she has received explanations and understands her rights
well. Even if the primary motive is financial compensation—it cannot be the only motive. If that is her sole
motive, she won’t be able to withstand it emotionally, and they will know how to screen her out in the
psychological evaluation stage, or at the least in the committee interview.
Attestation to the state’s efficacy at preventing harm to surrogates was also central to a surro-
gate’s Facebook post that was picked up by a national newspaper:
The State of Israel (and I am not one to give unnecessary praise to it) has successfully built a surrogacy
process with maximum consideration for the surrogate (to the dismay, sometimes, of the IPs, as this
sometimes comes at their expense). Tons of selections, insurances, consultations and forms . . . all in order
to make sure that it is the surrogate’s decision, that she was not pressured into it, that everything is clear to
her, that the danger is as minimal as possible, that there is a support system, that there are exit points, and
even that her life comes before that of the fetus she carries . . . So don’t use [the need to protect] us, the
surrogates, as an excuse for a law that denies equality [to gay men].
State regulation, then, is rendered by Israeli surrogates as a citizenship right that comes with
citizenship obligations; they consider it the state’s responsibility to give all of its citizens the right
to have children through surrogacy if they are unable to procreate otherwise. A surrogate wrote in
a public Facebook post about why she believes surrogacy should be permitted for single men and
gay male couples:
[It is wrong] to prevent people from undergoing this amazing process, here in Israel, with a supportive,
loving, and caring surrogate that they can give the same back to, whom they can communicate with in the
same language, whom they can pay much less (monetarily and mentally) in the same country where they
pay taxes, serve in the army, serve in the military reserves, and sometimes sacrifice their lives for.
Israeli surrogates, in sharp contrast to their US counterparts, see the state as “an instrument of
governance . . . as a custodian of civility against disorder: as having a mandate to conjure moral
community” (Comaroff and Comaroff, 2000: 39). The public testimonies highlight that the quest
for extending the surrogacy law to gay Israeli men is framed as necessary for preserving the Israeli
moral community in which citizens who sacrifice for the country can count on the country to assist
them, especially in the national goal of producing more Jewish citizens and thereby perpetuating
and protecting the Jewish state. As Ella, who marched in protests during the summer of 2018 sup-
porting gay men’s rights to enter local surrogacy arrangements, wrote in her blog: “As a surrogate,
I choose daily to sacrifice myself in order to create life for another family.” She contrasted the local
context from “third world countries”: “The Israeli story is different. There is such a thing as a dif-
ferent kind of surrogacy.” She concludes that gay men “should have the right to do surrogacy in
Israel just as any other citizen in the country has that right.”
Discussion
Our comparative discussion of surrogates in the United States and Israel—where cultural under-
standings and socio-political realities shape approaches to, meanings, and interpretations of the law
differently—ultimately reveals how social actors’ legal consciousness can contribute to the ongo-
ing “durability and ideational power of law” (Silbey, 2005: 358) in nearly opposite ways. While US
Teman and Berend 17
surrogates consider individual responsibility as a guarantee of best practices, Israeli surrogates
focus on state regulation. Yet in both countries surrogates articulated a moral vision not of fair
labor practices codified simply in legal contracts but of rights and obligations among private citi-
zens who came together to create families. Surrogates mostly want fair compensation for their
efforts, together with mutual care and trust. They consider appreciation, even friendship, the appro-
priate counter-gift for the sacrifices they make. Beyond the differences in their approach to legal
regulation, surrogates in both countries similarly evaluate practices and relationships in moral
terms. They also articulate the state’s role in these arrangements; thus, surrogates’ views reflect not
just the organization and meaning of these assisted arrangements but also the complexities of citi-
zenship and governance.
Surrogates in both countries also assess risks as well as institutional protections. Notions of risk
and risk management are highly context-dependent, shaped by social relationships, collective dis-
courses and practices, power relations, cultural values, and trust in institutions (Boholm, 2003;
Douglas, 2013). As we have shown, US surrogates are generally in favor of more oversight of
agencies and clinics to reign in “shady practices” that result in mismanaged funds and irresponsible
medical decisions. They want more regulation of practices that they are unable to otherwise control
or even fully know about. Nevertheless, they are skeptical of comprehensive regulation, especially
of contracts, which they believe they can learn to understand and which they see as the codification
of the relationship itself. Their notions of risk management and hence regulation are colored by
mistrust in government and by the relational context in which it becomes thinkable, even admira-
ble, to assume risks and make sacrifices for creating children for “deserving IPs.” SMO surrogates
embrace their moral responsibility for the journey, insisting that smart, independent, and resource-
ful women can make informed decisions and that by pooling information and knowledge, can do
much of the oversight collectively. In the pervasively privatized framing of US surrogacy, family,
and childbearing, which surrogates support and even promote, they fear that comprehensive regu-
lation would deprive them of agency, turn them into pawns of bureaucracies, and undermine rela-
tionships with IPs.
In these two highly developed countries, that in many ways have similar economic, family, and
legal systems, and where surrogates have similar socioeconomic standing, the surrogates we stud-
ied accept and mostly support different regulatory solutions to surrogacy-related issues. While
there are several similarities in terms of the meaning of surrogacy, Israeli surrogates welcome pro-
natalist state regulation of family formation in a national context, while their US counterparts favor
privatized responsibility in a private family context.
Conclusion
Beyond the myriad political and institutional dynamics that could prevent instituting centralized
regulation in the United States, our data reveal that surrogates are unlikely to fully support it.
Interestingly, it is technologically mediated communications among surrogates (Berend, 2016),
free-market mechanisms of competition among clinics (Guerzoni, 2020a), and legal standardiza-
tion of contracts by surrogacy lawyers (Berk, 2020) that have brought about some regularization of
practices. As Jesook Song (2006: 54,55) argued, neoliberalism is also a “sociocultural logic” that
is “enunciated by a variety of social actors.” SMO data demonstrate that surrogates embrace the
form of individualism that emphasizes self-sufficiency and personal responsibility (Engel 1984:
558).
Conversely, Israeli surrogates are in favor of government oversight of surrogacy contracts and
see comprehensive regulation as an important agent of protection. They maintain that it is the
state’s moral responsibility to help citizens have children and protect those who do it as surrogates
18 International Journal of Comparative Sociology 00(0)
by mandating state-supervised medical and psychological evaluations and regulation of the surro-
gacy process. In this framing of Israeli surrogacy, the state is a trusted partner, its power is seen as
legitimate and directed for the praiseworthy purposes of protecting the women who help citizens
realize their “right to parenthood.” Surrogates not only accept the body politic’s surveillance and
control of their individual bodies (Scheper-Hughes and Lock, 1987) but contend that the state
should expand regulation to allow all reproductively challenged citizens to contract with surrogates
in the same safely regulated manner, including gay men who were until very recently barred from
it. Israeli surrogates are not only building families but also the nation.
Our comparative article highlights how surrogacy in Israel is an outlier and a symbolic “out-
post” of a political economy that has largely become neoliberal but still retains bastions of the
earlier collectivist, socialist, Zionist, nationalist welfare state. As part of the nationalist agenda, and
a result of a combination of historical and geopolitical specificities, pro-natalism informs state
regulation of assisted reproduction. As Birenbaum-Carmeli notes (2016), most of the Israeli econ-
omy has moved toward privatization, yet pro-natalist and pro-family goals impact state subsidies
in health care and especially reproduction. Israeli women’s pursuit of surrogacy is in line with both
neoliberal ideology and state interests and aligns with Engel’s (1984: 558) “rights-oriented
approach to individualism.” They speak of becoming a surrogate to fulfill a personal goal “at their
own discretion as well as responsibility and risk” (Birenbaum-Carmeli 2016: 22), while simultane-
ously expecting and demanding that the state take an active role in closely regulating surrogacy,
screening them for it and contractually protecting them. They are choosing to be selected and
protected by the state to advance a personal goal, the “dream” of the IPs, and a national mission.
Our findings also demonstrate how legal meanings are situated in the context of other aspira-
tions and norms, and as Marshall and Barclay (2003: 625) argued, show that “people make claims
on the law, but not necessarily rights claims; that the law leads people to accept and acquiesce to
existing social and economic arrangements.” Israeli surrogates accept and welcome state control of
the national pro-natalist enterprise, with surrogacy normatively understood as a citizenship right,
while US surrogates embrace individual moral accountability in the context of private family-
building aspirations, to help “deserving” couples.
Acknowledgements
The authors would like to thank Daphna Birenbaum-Carmeli and Omi Leissner for their comments and the
surrogates who shared their stories with us. We also thank the anonymous reviewers and special issue editors,
especially Anika König.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
ORCID iD
Elly Teman https://orcid.org/0000-0001-8353-9965
References
Austin DM and Brisman MB (2013) Essential elements of informed consent in egg donation and surrogacy.
In: Sauer M (ed.) Principles of Oocyte and Embryo Donation. London: Springer, pp. 335–337.
Berend Z (2016) The Online World of Surrogacy. London: Berghahn Books.
Berk HL (2020) Savvy surrogates and rock star parents: Compensation provisions, contracting practices, and
the value of womb work. Law & Social Inquiry 45(2): 398–431.
Teman and Berend 19
Birenbaum-Carmeli D (2016) Thirty-five years of assisted reproductive technologies in Israel. Reproductive
Biomedicine & Society Online 2: 16–23.
Boholm Å (2003) The cultural nature of risk: Can there be an anthropology of uncertainty? Ethnos 68(2):
159–178.
Chua LJ and Engel DM (2019) Legal consciousness reconsidered. Annual Review of Law and Social Science
15: 335–353.
Comaroff J and Comaroff JL (2000) Millennial capitalism: First thoughts on a second coming. Public Culture
12(2): 291–343.
Conley JM and Barr W (1990) Rules Versus Relationships: The Ethnography of Legal Discourse. Chicago,
IL: University of Chicago Press.
Corea G (1985) The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial
Wombs. New York: Harper & Row.
Cover RM (1983) Foreword: Nomos and narrative. Harvard Law Review 97: 4–68.
CPC Court Statistics Project (2018). Available at: https://www.courtstatistics.org/__data/assets/pdf_
file/0014/40820/2018-Digest.pdf
Deomampo D (2016) Transnational Reproduction: Race, Kinship, and Commercial Surrogacy in India. New
York: NYU Press.
Douglas M (2013) Risk and Blame. London: Routledge.
Engel DM (1984) The oven bird’s song: Insiders, outsiders, and personal injuries in an American community.
Law and Society Review: 551–582.
Ewick P and Silbey SS (1991) Conformity, contestation, and resistance: An account of legal consciousness.
New England Law Review 26: 731–749.
Giddens A (1999) Risk and responsibility. The Modern Law Review 62: 1–10
Gooldin S (2013) Emotional rights,’ moral reasoning, and Jewish–Arab alliances in the regulation of in-vitro-
fertilization in Israel: Theorizing the unexpected consequences of assisted reproductive technologies.
Social Science & Medicine 83: 90–98.
Guerzoni CS (2020a) Gift narratives of US surrogates. Italian Sociological Review 10(3).
Guerzoni CS (2020b) Interconnected experiences, interconnected bodies the case of US surrogacy. In:
Guerzoni CS and Mattalucci C (eds) Body Politics and Reproductive Governances: Ethnographies on
Flesh,’ Technologies and Knowledge. West Yorkshire: Emerald Publishing. (in press).
Hovav A (2019) Producing moral palatability in the Mexican surrogacy market. Gender & Society 33(2):
273–295.
Inhorn MC, Birenbaum-Carmeli D, Birger J, et al. (2018) Elective egg freezing and its underlying socio-
demography: A binational analysis with global implications. Reproductive Biology and Endocrinology
161: 1–11.
Jacobson H (2016) Labor of Love: Gestational Surrogacy and the Work of Making Babies. New Brunswick,
NJ: Rutgers University Press.
Kahn SM (2000) Reproducing Jews: A Cultural Account of Assisted Conception in Israel. Durham, NC: Duke
University Press.
Lustenberger S (2017) “We are citizens”—vulnerability and privilege in the experiences of Israeli gay men
with surrogacy in India. Journal of Comparative Family Studies 48(3): 393–403.
Mahmud Z (2021) Regulating gestation: Surrogacy across the Atlantic. In: Presented at the Ottawa-McGill
Graduate Colloquium in Health Law, Policy and Ethics. May 21.
Majumdar A (2017) Transnational Commercial Surrogacy and the (Un)making of Kin in India. New Delhi,
India: Oxford University Press.
Marshall AM and Barclay S (2003) In their own words: How ordinary people construct the legal world. Law
& Soc. Inquiry 28: 617–628.
O’Neill O (2003) Some limits of informed consent. Journal of Medical Ethics 29(1): 4–7.
Pande A (2014) Wombs in Labor: Transnational Commercial Surrogacy in India. New York: Columbia
University Press.
Recommendation for practices utilizing gestational carriers: A committee opinion by the Practice Committee
of the American Society for Reproductive Medicine, DOI: 10.1016/j.fertnstert.2016.11.007
20 International Journal of Comparative Sociology 00(0)
Rose N (1999) Powers of Freedom: Reframing Political Thought. Cambridge: Cambridge University Press.
Rothman BK (2000) Recreating Motherhood. New Brunswick, NJ: Rutgers University Press.
Rudrappa S (2015) Discounted Life: The Price of Global Surrogacy in India. New York: NYU Press.
Saravanan S (2018) A Transnational Feminist View of Surrogacy Biomarkets in India. Berlin: Springer.
Scheper-Hughes N and Lock MM (1987) The mindful body: A prolegomenon to future work in medical
anthropology. Medical Anthropology Quarterly 1(1): 6–41.
Schurr C (2018) The baby business booms: Economic geographies of assisted reproduction. Geography
Compass 12: e12395.
Schurr C and Militz E (2018) The affective economy of transnational surrogacy. Environment and Planning
A: Economy and Space 50(8): 1626–1645.
Siegl V (2018) Fragile truths. The ethical labour of doing transnational surrogacy in Russia and Ukraine,
Doctoral thesis, Institute of Social Anthropology, University of Bern.
Silbey SS (2005) After legal consciousness. Annual Review of Law and Social Science 1: 323–368.
Song J (2006) Family breakdown and invisible homeless women: Neoliberal governance during the Asian
debt crisis in South Korea, 1997–2001. Positions: East Asia Cultures Critique 14(1): 37–65.
Teman, Elly (2016) Surrogacy in Israel: State-controlled surrogacy as a mechanism of symbolic control.
In Sills, Eric Scott (Ed.), Handbook of gestational surrogacy: International clinical practice & policy
issues (Pp. 165–173). Cambridge: Cambridge University Press.
Teman E and Berend Z (2021) Surrogacy as a Family Project: How Surrogates Articulate Familial Identity
and Belonging. Journal of Family Issues, 42(6): 1143–1165.
Teman E (2010) Birthing a mother: The surrogate body and the pregnant self. Berkeley: University of
California Press.
Teman E (2019) The power of the single story in surrogacy. Medical Anthropology: Cross-Cultural Studies
In Health & Illness, 38(3): 282–294.
Vora K (2013) Potential, risk, and return in transnational Indian gestational surrogacy. Current Anthropology
54(S7): S97–S106.
Weis CC (2017) Reproductive Migrations: Surrogacy Workers and Stratified Reproduction in St Petersburg.
De Monfort University.
Whittaker A (2014) Merit and money: The situated ethics of transnational commercial surrogacy in Thailand.
The International Journal of Feminist Approaches to Bioethics 7(2): 100–120.
