Lecture 5 — Autonomy, Paternalism, and Reproduction
Part B: Making Family — Markets, Surrogacy, and Parental Rights
An Introduction to Bioethics.
A Contract in 1985
In 1985, William Stern and Mary Beth Whitehead signed a contract through a New Jersey surrogacy broker. The contract obligated Whitehead, on the basis of a $10,000 fee, to undergo artificial insemination with Stern’s sperm, to abstain from cigarettes, alcohol, and non-prescription medication, to submit to amniocentesis on Stern’s request, to terminate the pregnancy if Stern requested it in the event of “physiological abnormality,” to deliver the child to the Sterns at birth, and to make no effort to form a parent-child relationship with the child.
Write or discuss:
- Whitehead signed knowingly and was paid the agreed amount. Why should the law care what she agreed to?
- Are the clauses about smoking, drinking, and amniocentesis morally equivalent to the clauses about parental rights, or different in kind?
- If the contract is wrong, is the wrong done to Whitehead, to the child, or to the rest of us?
These are the actual terms, as summarized in the New Jersey Supreme Court’s opinion — In re Baby M, 109 N.J. 396 (1988). We return to what the court did with the contract later in this chapter.
After You’ve Discussed
Note
- The same contract has been treated four different ways in four different jurisdictions. New Jersey voided it. California enforces gestational versions of it routinely. India banned it in 2015. France treats arrangements like it as criminal.
- The disagreement is not about whether people will continue to want what the Sterns wanted. It is about what kind of arrangement the law should make available to them.
Today
By the end of Part B, you will be able to:
- State Elizabeth Anderson’s commodification argument in standard form and identify its load-bearing premise.
- Give the strongest version of John Robertson’s procreative-liberty reply.
- Describe what In re Baby M (1988) and Johnson v. Calvert (1993) held, and explain the intent test for parenthood.
- Account for the practical end of donor anonymity in the consumer-DNA era.
- Explain what the Alabama Supreme Court held in LePage v. Mobile Infirmary (2024) and why the legislative “fix” left the underlying holding in place.
What IVF Actually Does
In vitro fertilization (IVF) is the process of combining egg and sperm outside the body and transferring a resulting embryo back into the uterus. A typical cycle proceeds through five steps:
A cycle takes two to three weeks and costs (in the US, 2025) around $15,000–$25,000 before medications. About one in three transfers results in a live birth under age thirty-five; substantially fewer in older patients.
ICSI and Why It Exists
- Intracytoplasmic sperm injection (ICSI) injects a single sperm directly into a single egg.
- It was introduced in 1992 for severe male-factor infertility, where sperm counts were too low for conventional IVF.
- By 2020 it was used in roughly 70% of US IVF cycles, far beyond that indication. Patients are rarely told the difference.
Dr Elena Kontogianni, via Wikimedia Commons. CC0 1.0.
Gestational vs. Traditional Surrogacy
Traditional surrogacy. The surrogate is also the genetic mother — her egg is used. The arrangement Baby M litigated.
This form has nearly disappeared from the US market since the 1990s. The genetic connection makes the surrogate’s parental claim too strong, and contracts cannot reliably override it.
Gestational surrogacy. The surrogate gestates an embryo created from someone else’s egg and sperm. She has no genetic relationship to the child.
Roughly 98% of US surrogacy is now gestational. The legal and ethical questions diverge sharply from the traditional case; Johnson v. Calvert (1993) is the foundational ruling.
Commodification and Surrogacy
Anderson’s Commodification Argument
Anderson: Commercial Surrogacy Improperly Commodifies
Elizabeth Anderson, “Is Women’s Labor a Commodity?” (1990)
- Some goods have their value diminished or distorted when they are produced, exchanged, or enjoyed under market norms — children and reproductive labor are among them.
- The proper mode of valuing a child is love (parental rights as trusts); the proper mode of valuing women’s reproductive labor is one that respects its non-fungible character.
- Commercial surrogacy substitutes market norms (use, disposal, fungibility) for these proper modes of valuation.
- Therefore, commercial surrogacy improperly commodifies both children and women’s reproductive labor.
The disputed premise is the first: that some goods are intrinsically damaged by market exchange.
Robertson’s Procreative-Liberty Reply
Robertson: Procreative Liberty Protects Surrogacy
John Robertson, Children of Choice (1994)
- Procreative liberty — the right to decide whether, when, and how to reproduce — is a core liberty interest deserving strong constitutional and moral protection.
- Surrogacy arrangements between informed, consenting adults are exercises of that liberty.
- The state may restrict procreative liberty only on the basis of demonstrable harm to identifiable parties — not on the basis of contested moral views about what reproduction should look like.
- Therefore, commercial surrogacy should be permitted, with regulation directed at preventing specific harms (fraud, coercion, harm to children) rather than at suppressing the arrangement itself.
The soft spot is premise 3’s narrow definition of harm. Anderson would reply that commodification is the harm.
Roberts and Reproductive Justice
- The Anderson–Robertson debate asks whether markets in reproduction are permissible.
- Reproductive justice, the tradition associated with Dorothy Roberts, asks whose markets, and on whose bodies (Roberts 1997).
- US gestational surrogates are disproportionately women in their twenties and thirties earning under $60,000 a year.
- Before the 2015 bans, international surrogates were mostly poor women in India, Thailand, and Nepal, paid roughly one-fifth of what the same service cost a US client.
Commercial vs. Altruistic
| Commercial | Altruistic | |
|---|---|---|
| What changes hands | A negotiated fee beyond medical expenses | Medical expenses and (sometimes) lost wages only |
| Who chooses the surrogate | Agency matching, often across state or national lines | Typically a friend or relative |
| The implicit ethical picture | Markets can handle reproductive labor with the right safeguards | Markets cannot handle this; gift-relations can |
| Where it is the law | California, Texas, several other US states; Ukraine | UK, Canada, Australia, most of Europe |
Most jurisdictions choose one regime. The choice is not technical; it is a stance on Anderson and Robertson.
Where Each Is Legal
| Jurisdiction | Commercial | Altruistic | Status |
|---|---|---|---|
| California | Permitted | Permitted | Enforceable contracts since Johnson (1993) |
| New York | Permitted | Permitted | Legalized 2021 (Child-Parent Security Act) |
| United Kingdom | Prohibited | Permitted | No enforceable contracts; parenthood at birth |
| France | Prohibited | Prohibited | Criminal offense since 1994 |
| India | Prohibited | Permitted (citizens only) | Commercial ban 2015 (Surrogacy Act 2021) |
| Italy | Prohibited | Prohibited | 2024 law criminalizes citizens for using surrogates abroad |
When one country bans commercial surrogacy, the market moves: after the 2015 bans in India, Thailand, and Nepal, it shifted to Mexico, Ukraine, and later Colombia and Argentina.
Thought Question — Three Surrogacy Arrangements
Three real arrangements, lightly summarized. For each: is the arrangement (a) permissible, (b) permissible with regulation, or (c) impermissible? What is your reason — Anderson, Robertson, reproductive justice, or some combination?
- A married couple in San Francisco pays a $45,000 fee plus medical expenses to a married woman in Stockton with two children of her own, to gestate an embryo created from the couple’s own gametes.
- A single man in Tel Aviv pays an Indian-run agency $40,000 to find a gestational surrogate in Cancún, Mexico. The surrogate’s share is $7,000.
- A woman in London gestates a child for her sister, who cannot carry a pregnancy due to a uterine condition. The arrangement is reimbursed for medical expenses only.
After You’ve Discussed
Note
Exploitation and commodification are not the same wrong. A non-exploitative market can still commodify the good it trades in. A non-commodifying arrangement (an altruistic family surrogacy with no money involved) can still exploit the surrogate through emotional pressure or asymmetric power.
Most surrogacy debates assume the two wrongs travel together. They do not. Which wrong drives your judgment shapes what fix you reach for — better contracts and informed consent address exploitation; the ban-it-or-permit-it question addresses commodification.
Gamete Markets
Paying for Eggs
- About one in nine US IVF cycles now uses donor eggs.
- Median donor compensation in 2024 was about $8,000. High-end programs pay $25,000–$50,000 for donors with specific traits.
- The ASRM guideline capping compensation at $10,000 has been withdrawn.
In March 1999, ads in the Yale Daily News, the Harvard Crimson, the Stanford Daily, and other elite campus papers sought an egg donor at least 5′10″ tall, with an SAT score above 1400 and no major family medical issues. The offer was $50,000, about five times the going rate.
What, exactly, is being purchased for fifty thousand dollars?
The End of Donor Anonymity
| Jurisdiction | Anonymity banned |
|---|---|
| Sweden | 1985 |
| UK | 2005 |
| Germany | 2018 |
| France | 2021 |
| United States | Still permitted |
- The US is now an outlier in still permitting anonymous donation (Wilkinson and Williams 2023).
- 23andMe and Ancestry hold roughly 50 million profiles. A donor with one cousin in either database is, in practice, identifiable.
- Anonymity is now a term of the contract, not a fact about the world. The open question is whether donors should be told it will not hold.
Parental Rights
In re Baby M (1988)
- The Sterns contracted with Mary Beth Whitehead: artificial insemination with William Stern’s sperm, $10,000, and surrender of the child at birth.
- Baby M was born in March 1986. Whitehead surrendered her, changed her mind within days, and fled with her to Florida. The trial court enforced the contract.
Important
Held (NJ Supreme Court, 1988): the contract is void as against public policy. The state may not enforce a contract that terminates parental rights before birth or pays for the transfer of a child. Custody went to William Stern under the best-interests-of-the-child standard; Whitehead kept parental rights, with visitation.
Johnson v. Calvert (1993): The Intent Test
- The Calverts supplied both egg and sperm; Anna Johnson gestated the embryo for $10,000. Unlike Whitehead, she had no genetic tie to the child.
- Late in the pregnancy she demanded the remaining payments and threatened to keep the child.
Important
Held (Cal. Supreme Court, 1993): when gestational and genetic claims conflict, the legal mother is the woman who, at conception, intended to bring about the birth of a child she intended to raise. The deciding factor is the project, not the biology.
The decision made gestational surrogacy a stable American institution (Supreme Court of California 1993).
The Three Tests, Side by Side
| Test | Picks the parent who… | Where it works | Where it fails |
|---|---|---|---|
| Genetic | Contributed the gametes | Disputes over abandoned IVF embryos | Anonymous donation; egg donation; cases where the genetic parent never intended to raise |
| Gestational | Carried and delivered the child | Traditional surrogacy (Baby M); refusal-to-relinquish cases | Gestational surrogacy where the carrier has no genetic tie and never intended to raise |
| Intent | Set the project in motion and meant to raise | Gestational surrogacy with a clean contract | Divorce mid-pregnancy; death of an intended parent; bad-faith intent |
No test handles every case. Most US jurisdictions use intent as the default and best interests as the backstop.
Thought Question — Three Mothers
A married couple in Los Angeles begins an IVF cycle using a paid egg donor — they intend the resulting child to be raised by the husband and wife together. The embryo is implanted in a paid gestational carrier in San Diego. During the second trimester, the husband and wife separate. The wife disclaims interest in the child. The egg donor — informed of the pregnancy through a friend in the clinic — files a petition for parental rights.
Write or discuss.
- Under the intent test, who is the legal mother?
- Under the genetic test? Under the gestational test?
- Which test is your test, and what does it commit you to in the cases the other tests handle better?
After You’ve Discussed
Note
The intent test does most of the day-to-day legal work in the US — fast, contract-friendly, predictable in the typical gestational case. But it presupposes a clean contract. When the contract dissolves — death, divorce, dispute, a change of mind — it runs out of inputs, and Baby M’s best-interests-of-the-child standard is the slower, more discretionary backstop that catches those cases.
The American compromise is to use both: intent as the rule, best interests as the safety net.
LePage and the Alabama IVF Aftershock
LePage v. Mobile Infirmary Clinic (2024)
- In late 2020 a hospital patient wandered into a Mobile, Alabama fertility clinic’s storage area, pulled frozen embryos from liquid nitrogen, and dropped them. Three sets of parents sued for wrongful death.
- The lower courts dismissed the claims: frozen embryos were not “minor children” under Alabama’s wrongful-death statute.
Important
Held (Ala. Supreme Court, Feb. 16, 2024): the Wrongful Death of a Minor Act covers “all unborn children, regardless of their location,” including embryos stored outside a uterus.
Eighteen Days: The Pause and the Fix
- Clinics did not read the ruling as banning IVF. They read it as making any embryo loss, routine in IVF, uninsurable.
- Alabama Act 2024-21 gave IVF providers and patients civil and criminal immunity for embryo loss during treatment.
- It is a carve-out, not a reversal. Embryos remain “children” under the wrongful-death statute, and some 350,000 frozen in Alabama sit in an unclear legal status.
Florida 2026 — Surrogacy as the Next Front
- In 2024 a married couple in France contracted with a Florida woman for gestational surrogacy.
- In August 2025 a Broward County judge granted them parental rights, but wrote that surrogacy may be unconstitutional on fetal-personhood grounds.
- Florida’s Attorney General, James Uthmeier, moved to intervene, arguing that commercial surrogacy violates the Thirteenth Amendment’s ban on slavery.
Anderson’s argument, from the right. Uthmeier’s claim, that surrogacy treats children as property and women’s labor as something for sale, is structurally Anderson’s 1990 argument.
Feminist philosophers on the left and fetal-personhood advocates on the right disagree about almost everything else. They converge on the claim that some things are not properly bought.
As of July 2026 the appeal was pending before Florida’s Fourth District Court of Appeal. The child has remained with the fathers throughout.
Three Thinkers, Four Questions
| Anderson | Robertson | Roberts | |
|---|---|---|---|
| Surrogacy | Commodifies women’s labor and children | Procreative liberty; regulate harms, not arrangements | Whose markets? Burdens fall on poor women |
| Gamete markets | Gametes are not commodities | Adult-to-adult exchange with informed consent | DNA-era anonymity is not equally available |
| Parental rights | Trusts, not property | Contract, with the intent test | Whose children each test protects |
| LePage | Overreaches, but follows the logic | A category error: embryos are not children | The personhood logic reaches IVF unevenly |
The Through-Line: Reproduction After Dobbs
- Moral-status arguments disagree about what the fetus is owed.
- Dobbs handed that disagreement to state legislatures.
- Some states then prosecuted pregnant women for pregnancy outcomes, routing enforcement through the clinic.
- LePage carried the same personhood logic to embryos in a freezer, and Alabama IVF stopped for eighteen days.
- Each step turned on the same two questions: who counts, and who decides?
Review Questions
Write a brief answer to each, or use them as discussion prompts.
Recall
In your own words, state the intent test from Johnson v. Calvert. Give one kind of case where the intent test does not give a clear answer.
Apply
An Alabama woman wants her IVF clinic to destroy three frozen embryos she no longer needs. The clinic refuses, citing LePage. What is the clinic worried about, and what is the patient’s strongest reply?
Debate
Anderson says commercial surrogacy is wrong in itself, no matter how well it is regulated. Robertson says it is fine unless we can show specific harms. Pick the side you find harder to defend and make the strongest case you can for it.
Key Terms
- Commodification — treating a good as the kind of thing that can properly be produced, exchanged, and disposed of under market norms.
- Procreative liberty — Robertson’s term for the right to decide whether, when, and how to reproduce.
- Reproductive justice — the frame, associated with Dorothy Roberts, asking whose reproductive choices are constrained by what social conditions.
- Gestational vs. traditional surrogacy — gestational: surrogate has no genetic tie; traditional: surrogate’s egg is used.
- Intent test — the rule from Johnson v. Calvert that parental rights belong to whoever set the project in motion intending to raise the child.
- Best interests of the child — the family-law default standard that decides contested custody when other rules run out.
- Donor anonymity — a contractual protection of a gamete donor’s identity; increasingly unenforceable in the consumer-DNA era.
- Wrongful-death-of-embryo statute — a state law extending wrongful-death liability to the destruction of frozen embryos (Alabama, 2024).
References
Bioethics OER · CC BY-NC 4.0 · Brendan Shea