Thoughts on “Her Body, My Baby”

Posted on December 7th, 2008 by Katherine Franke

Noa Ben-Asher, an Associate at Columbia Law School who works on issues of surrogacy and ideals of the family, reflects on the cover story in the New York Times Magazine, Her Body, My Baby, last Sunday:

Her Body, My Baby, the story of a married couple who hires a gestational surrogate to carry their genetic child published last weekend by the NY Times Magazine, echoes familiar and difficult social-legal-moral concerns that are often raised regarding reproductive technologies. Should the law permit the rental of a uterus? Should a child born of this arrangement have access to the surrogate? How do we make sure that surrogates are not coerced into surrogacy by harsh financial conditions? Should the law instead encourage infertile individuals to adopt children in need? Etc. Alex Kuczynski’s personal story of ongoing unsuccessful infertility treatments that eventually led her and her husband to hire a gestational surrogate personalizes these dilemmas. Despite facing moral and ethical conflicts throughout the process, Kuczynski eventually ends up praising the scientific development of gestational surrogacy, describing her newborn son as “our most vivid dream realized- the embodiment of the most blindly powerful force in the universe, brought to life the only way he could be. With a little help.”

Gestational surrogacy has recently received growing attention in legal academia. An issue less frequently considered in these discussions is whether and how the rising popularity of gestational surrogacy can inform current social and legal understanding of marriage. At first glance it seems that the issues don’t have much to do with each other. However, a careful reading of Her Body, My Baby reveals what can be characterized as a surprising subversion coming from within traditional marriages. Gestational surrogacy arrangements in reality open marriages up to third and often forth parties (the surrogate and more often than not, her husband). Gestational Surrogacy can be understood in two distinct ways, both surfacing from Her Body, My Baby. The first and more common interpretation is the one embraced by courts and legislators in the last fifteen years—the gestational surrogate is hired as a carrier to assist a couple in the reproductive process. Or as Kuczynski puts it, she is “a vessel, the carrier, the biological babysitter, for my baby.” Since Johnson v. Calvert (CA 1993) courts and legislators have endorsed this interpretation of gestational surrogacy. In this interpretation the institution of marriage remains a closed unit in which the surrogate is hired as an outsider, like a gardener, a nanny, or an architect, but does not push on the definitional boundaries of marriage.

I am interested in a second, much less common interpretation of gestational surrogacy, which is revealed in Kuczynski’s actual personal experience of hiring a gestational surrogate. In this interpretation the boundaries of parenthood, reproduction and marriage are much less clear. The gestational surrogate and her husband, though not the legal parents of the child, are not total strangers to the marriage. In fact, there is intimacy, a joint experience of creating a child—perhaps a temporal redefinition of the two marriages. Kuczynski’s actual relationship with Cathy (the surrogate), as described by Kuczynski is not merely a relationship of a client with her service provider. During the pregnancy, Cathy told Kuczynski that she considered the previous couple to whom she assisted as a surrogate as “close as extended family,” which made Kuczynski wonder, “Do we all have to have Thanksgiving together? If so, for how many years? And which husband carves the turkey?” Kuczynski later describes a meeting of the two couples a few days before birth where “the husbands clapped each other on the back. It was an entirely domestic scene, like something out of Norman Rockwell…” The women become close, physically and emotionally, reaching a climax in the delivery room: “there was the mind-bending philosophical weirdness of it: the torture of childbirth, of being split open, of having your body turned, it seemed, inside out to produce this giant, beautiful baby. Cathy vomited; I vomited.” In the peak of the drama, the delivery room, Kuczynski describes this newly formed temporal family unit: “Cathy (the surrogate), her husband, her two daughters. Two nurses, a doctor and my husband. I cut the umbilical cord.”

It seems that with current and future growth in the use of gestational surrogacy, we may find new and surprising extra-legal familial structures that at least temporarily transgress the traditional marital model. This is especially interesting given that the original goal of such arrangements is the securing and enhancement of traditional marriages by the creation of children who otherwise would not have come into existence.

Noa Ben-Asher, Associate at Law
Columbia Law School
(212) 854-1980
SSRN Author page:


  1. The idea that the players here are all part of an extended family is interesting to me. I’ve been thinking about surrogacy myself, mostly on my own blog ( I am generally concerned about the power dynamic between the surrogate and the individual(s) who hire her. The contract paradigm that is generally employed seems to me to model a master/servant relationship. (I think this might be part of why, to me, the pictures accompanying the NYT piece were so inflammatory.)

    Your suggestion that we draw on notions of extended family is an interesting one that would preserve the role of all the players as important people in the life of the child who might eventually result from the surrogacy. In general, however, models involving money and models involving familial relationships don’t mix much in our legal culture. We don’t typically think of hiring or purchasing family. So what becomes of the commercial transaction in your model?

    We also continue to draw a fairly stark line between parents and extended family, giving parents far more authority, indeed (as Troxel shows) authority to restrict ties to extended family. That would seem to at least partially undermine the value that reconceptualizing the surrogate as a family member (short of a parent).

    I think I write generally from the perspective of a person deeply skeptical about the necessity of providing enforceable surrogacy arrangements, and this undoubtedly skews my analysis. Just full disclosure, for what it is worth.

  2. I agree. The law as it is today in many (but not all) states takes a contract approach to gestational surrogacy, basically viewing it as an enforceable rental of a uterus. So what we have in this article is a personal narrative of an individual actor in a fairly new market (the writer who hires a surrogate) responding to a new legal norm. This article shows that even when the legal norm draws a clear distinction between parent and non-parent, the parties themselves are more ambivalent about it. I find it fascinating that while the author explicitly embraces this legal norm (that recognizes HER as the one and only mother) she also unconsciously denies it. Thus leading her and her text to pleasant confusion.

    The question that you raise then is, well, how can we articulate a legal norm that will embrace this other, more nuanced understanding of gestational surrogacy? is contract law really enough to regulate this new emerging form of reproduction? My sense is that at this point we don’t have enough information regarding the actual consequences of such agreements (given that this market is relatively new). So in my view, at this point the normative and policy concerns should involve making sure that gestational surrogates enter fair agreements.

  3. Hi Noa, I tackled a related problem in an article on the lesbian custody cases from California in 2005 (Elisa B, K.M., etc.). One of the interesting things was the way the court dealt with the surrogacy precedent, Johnson v Calvert. In J v C, the court decided, for unclear reasons, that the claims of the gestational surrogate mom (Johnson) and the egg-providing/surrogate contracting mom (Mrs Calvert) were contradictory, not complementary. They invented the intentionality doctrine, which was, in my humble opinion, submitted to a devastating criticism by the dissent.

    My hunch is that in J v C, the court was worried about exposing the marriage between the sperm providing/surrogate contracting husband (Mr Calvert) and Mrs Calvert to disruption by giving Ms Johnson joint custody. In fact she gets nothing, not even visitation. The court says flatly, “a child cannot have two mothers.” The ACLU urged a multiple parent solution and the court did not go there.

    But suddenly, in the 2005 decision dealing with the breakup of a lesbian parent couple, the court says, well , we did not intend J v C to apply here, and both women are eligible for custody. But what is the difference between these cases?

    I think its because there is no marriage in Elisa B that needs to be saved. I pose a hypothetical: what if the lesbian parenting couple broke up, then the bio mom married a man, and then the social mom went to court to sue for custody? I bet the court would say that in that case, the interests of the two women would be contradictory and that only one could prevail. Back to J v C, in other words.

    And here is the question I did not pose, but would be interesting, lets say this lesbian parenting couple happens to live in Mass. They break up, and then bio mom marries a third woman, and the original social mom sues for custody. Would the court have the same reluctance to impose the third parent into the lives of the same-sex marital couple? Now that would be a way to test for the court’s concealed but maintained heteronormativity.

    Would the sanctity of the lesbian marriage receive exactly the same attention and concern as the Calverts’ marriage received? Would the court be more willing to experiment with a multiple parent solution? And it would be more willing to do that when there are 3 moms involved, rather than 3 dads, thanks to the continuing undercurrents of the tender years doctrine ?

  4. Anna Marie:

    Thank you for these thoughts.

    Regarding the analogy to Elisa B, one important difference between Calvert and Elisa B is that in Calvert, as you write, two women had what we can call a “bio” maternity claim: one carried the pregnancy, the other provided the genetic material. The court chooses the latter as the true and only mother. She happens to be married to the sperm provider. Your suggestion that this is about preserving the marital bond of the Calverts is compelling. But what about the Baby M case (not a gestational surrogacy but a full surrogacy case)? Was the Baby M court less interested in the Sterns’ marital bond when it recognized Mr. Stern as the father, but left Mrs. Stern with no claim? We can perhaps expand your suggestion to say the following: Courts are very interested in protecting marriages from 3rd party parental claims, but only when both parties to the marriage made an initial genetic contribution. So there are two values at stake here: marriage and genetic parenthood.

    This leads to your hypo #1: lesbian couple breaks up, then bio mom marries man. I do not think that under current law in most states, the non-bio mom will be denied parental rights altogether. In other words, the sanctity of the new marriage will not be a legal consideration against the parental claim of a social or de-facto parent. Same answer to hypo#2- if the bio mom marries a woman. In both scenarios it seems to me that the non-bio mom will be granted parental rights and compelled to perform some parental duties.

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