The Legalization of Emotion: Managing Risk by Managing Feelings in Contracts for Surrogate Labor

Abstract

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.

Surrogacy relationships: a critical interpretative review

“…Many studies (some with overlapping samples) focus solely or mainly on surrogacy practices in a single country, e.g. thirteen on Indian (19)(20)(21)(22)(23)(24)(25)(26)(27)(28)(29)(30)(31), nine on the US (32)(33)(34)(35)(36)(37)(38)(39)(40), and five articles on the Israeli context (36,(41)(42)(43)(44). The least studied country contexts in this sample include Greece 45, Iran (46), Italy (47), Mexico (48,49), Norway (50), Sweden (51,52), and Russia/Ukraine (53,54).…”

“…Contact before and after the birth is regulated by the contract, including: (1) lifestyle rules and behavioural restrictions; (2) rules governing breastfeeding, and 'intimate' form of contact with the baby; and (3) rules governing viewing, handling, and future relationships with the newborn (37). The expectations of both parties are often fulfilled to a large extent, based on contractual regulations: I'm satisfied, it's what we wanted.…”

Savvy Surrogates and Rock Star Parents: Compensation Provisions, Contracting Practices, and the Value of Womb Work

“…Surrogacy not only challenges the traditional alignment of mother-child bonds but also "nurtures parents-to-be" through interpretive and relational work (Berend 2016; Teman 2010). A variety of professionals in the reproductive field-from lawyers, to matching agencies, to psychologists-use contract provisions, practices, and emotion management techniques to manage risk and constitute identity, simultaneously legalizing and reconstructing gender and family paradigms (Berk 2015).…”

“One for Sorrow, Two for Joy?”: American embryo transfer guideline recommendations, practices, and outcomes for gestational surrogate patients

“…More research is needed especially on the roles played by counseling and consenting mechanisms. Beck's work on contracting of emotion may serve as a useful starting point as her examination of surrogacy arrangements documents the loss of autonomy expected of surrogates [113].…”

“…Applicability to surrogate IVF treatment, prenatal care, delivery, and infant medical coverage remains uncertain [90,118]. Where state law permits surrogacy or is silent about it, medical expenses and insurance coverage often form elements of surrogacy arrangements and contracts and may be embedded in law [90,113]. For example, the Fuchs and Berenson study reported that 94% of surveyed gestational surrogates had private medical insurance [112].…”