Chapter 11: Harmless “Preferences”? How the Surrogacy Matching Process Legalizes Discrimination

How are racism, homophobia, and religious bias reproduced through individual and structural level relations in the unsettled baby market? Technically, the only criterion for a surrogate is a healthy uterus. Yet agencies, lawyers, and counselors involved in matching potential surrogates with intended parents prior to contracting embrace a more complex set of criteria, including those based on race, sexual orientation, and religious beliefs. In addition to considering physical and psychiatric fitness, professionals anticipate relational conflicts that may unfold during the surrogacy process by developing what I coin values criteria during the matching phase. The “values” criteria screen parties for their: (1) religious views, (2) attitudes on abortion, (3) degrees of homophobia, and (4) racial bias. While professionals compare this to harmless matching in dating, unlike dating, a surrogacy contract is a legally enforceable exchange relationship. Contracts have actual and symbolic power, legitimizing transactions despite ongoing moral and legal contestation about paid pregnancy. I illustrate how specific emotional fitness criteria, neutrally framed by professionals as based on the surrogate’s or intended parents’ values and preferences – rather than discrimination – are critical to the screening phase that precedes the formal surrogacy contract. Racism, homophobia, and religious discrimination are encouraged in this context, despite anti-discrimination law. However, there are resistors serving the baby market. Deference to “preferences” are arguably necessary for smooth transactions, yet consequential. Discriminatory practices, though neutrally coded as risk management, are a way law, through contracting, serves to both constitute and reproduce race, sex, and other social categories.