Hillary L. Berk’s research while affiliated with University of California, Irvine and other places

What is the value of surrogate labor and risks, and how is it negotiated by participants as they contract within an unsettled baby market? This article presents novel data on compensation, fee, and bodily autonomy provisions formalized in surrogacy contracts, and the experiences of actors embedded in exchange relations, as they emerge in a contested reproductive market. It combines content analysis of a sample of thirty surrogacy contracts with 115 semi-structured interviews conducted in twenty states across the United States of parties to these agreements, attorneys who draft them, counselors, and agencies that coordinate matches between intended parents and surrogates. It analyzes the value of services and medical risks, such as loss of a uterus, selective abortion, and “carrier incapacity,” as they are encoded into agreements within an ambiguous field. Surrogacy is presented as an interactive social process involving law, markets, medicine, and a variety of cultural norms surrounding gender, motherhood, and work. Contracts have actual and symbolic power, legitimating transactions despite moral anxieties. Compensation transforms pregnancy into a job while helping participants make sense of the market and their “womb work” given normative flux. Contracts are deployed by professionals without informed policies that could enhance power and reduce potential inequalities.

Despite a rich literature in law and society embracing contracts as exchange relations, empirical work has yet to consider their emotional dimensions. I explore the previously unmapped case of surrogacy to address the interface of law and emotions in contracting. Using 115 semistructured interviews and content analyses of 30 surrogacy contracts, I explain why and how lawyers, with the help of matching agencies and counselors, tactically manage a variety of emotions in surrogates and intended parents before, during, and after the baby is born. I establish that a web of “feeling rules” concerning lifestyle, intimate contact, and future relationships are formalized in the contract, coupled with informal strategies like “triage,” to minimize attachment, conflicts, and risk amidst a highly unsettled and contested legal terrain. Feeling rules are shared and embraced by practitioners in an increasingly multijurisdictional field, thereby forging and legitimating new emotion cultures. Surrogacy offers a strategic site in which to investigate the legalization of emotion—a process that may be occurring throughout contemporary society in a variety of exchange relations.