Drawing upon the literatures on law and emotions, law and gender, and law and society, this research examines how parties to surrogacy agreements, their lawyers, and fertility groups attempt to shape and manage the emotional aspects of relationships through contractual language and in the broader exchange relationships that surround contract formation. To examine how law matters in structuring the emotional aspects of social interactions, this project focuses on several more specific questions: (1) how contractual language reflects efforts to manage emotions; (2) how parties to surrogacy contracts derive the terms of their agreements, including compensation, role assignment, and "intimacy restrictions" intended to manage feelings; and (3) the relative roles of both formal contract provisions and other social norms in managing surrogacy relationships. The research plan involves a multi-method empirical approach that combines content analyses of a sample of surrogacy contracts with semi-structured interviews across the United States of parties to these agreements, attorneys who draft them, and fertility agencies that coordinate matches between parents and surrogate mothers.

The results of this research could have important implications for policymakers regarding family formation using assisted reproductive technology, and for the judiciary as they address contract disputes regarding motherhood and the establishment of parental rights.

Project Report

How do surrogates, and the parents who pay them to birth a child, manage the complex range of emotions they experience during the contracting process, and after the baby is born? This project generates an empirically driven theory of law and emotions in exchange relationships and explains a new social terrain as yet unmapped in the sociology of law. It highlights the role of lawyers and agencies in structuring the emotional aspects of agreements. The process of contracting for surrogate labor offers a unique opportunity to understand how law operates to manage feelings because it is a social context that is enshrined in court decisions as not only gendered, but also fraught with emotion. Curiously, it is also cast as a dispassionate contract for services rendered under a "free market" model. Advances in reproductive medicine, growing infertility, and trends in gay parenting have fueled a sharp increase in surrogacy globally. Within the United States, jurisdictions are still divided on the legality of contract pregnancy, and the practice continues to be prohibited in many countries around the world. From March 2011 through April 2012, I conducted 115 semi-structured recorded interviews with four subject categories in twenty states across the United States, including attorneys who specialize in assisted reproductive technology law, surrogates, intended parents, and the agencies who coordinate their match. The field sites were selected as regional clusters whose geographic borders varied by "surrogacy friendliness" of laws. Although the study focused on subjects located in the United States, many lawyers and agencies in the sample have international clients as parties to the contract. Additionally, surrogacy contracting is multi-jurisdictional within the United States. The data were systematically reviewed, coded and analyzed using Atlas.ti qualitative research software. To understand the role of lawyers and agencies in managing the feelings of intended parents and surrogates during and after contract formation, this project examines: (1) how contractual language reflects efforts to manage emotions; (2) how parties to surrogacy contracts derive the terms of their agreements, including compensation, responsibilities, and a host of rules governing behavior; and (3) the relative function of both formalized contract provisions and informal techniques used to control various aspects of the surrogacy relationship. It further determines how disputes that arise out of those relationships are managed, and the nature of the bonds between the parties. While data analysis is still in process, I find that a web of formal rules and restrictions, along with informal practices, are developed and deployed by lawyers in collaboration with matching agencies to prevent emotional attachment, resentment, or alienation in the surrogate and handle feelings like vulnerability, anxiety, and jealousy in the intended parents. I have developed specific categories to represent the kinds of strategies deployed, for example, imposing rules on lifestyle, diet, communication, and psychological counseling. I coin various rules associated with handling, viewing, nursing, or having continuing contact with the newborn "intimacy restrictions." Each match entails the negotiation of detailed contract provisions, compatibility on sensitive issues like "selective reduction" of multiple fetuses, and payment for services or fees. I show that legal actors also work to intentionally cultivate particular emotions like gratitude and excitement. While birth mothers are normatively expected to emotionally bond with the babies they bare, commercial surrogacy, which demands detachment, counters the norm. By deploying specific strategies and developing techniques to manage their client’s emotions, along with those of the opposing party, I find that lawyers at once generate new norms surrounding family and perpetuate old gender stereotypes regarding motherhood and women’s labor. This interdisciplinary project uniquely brings together the literatures in law and society, law and gender, law and emotions, and the sociology of work through study of the emotional dynamics of contracting. While there has been tremendous growth in assisted reproductive technology amidst an unsettled legal terrain, impacting how we view women, work, and family, little socio-legal research has examined the process. The main contribution of this project is to provide the first systematic account of how parties to contracts, their lawyers, and the programs that match surrogates with intended parents not only manage emotions during each process, but also become agents of institutionalization, designing contracts that both reflect and reinforce broad social norms regarding the emotions a woman should feel during pregnancy and childbirth. I demonstrate how parties use law and create specific techniques to handle and channel feelings, providing new insights into the role of law vis-à-vis other social norms in shaping the relationships of parties to agreements. I generate an institutional theory of law and emotions in surrogacy contracting that is transposable to a variety of other social contexts. This study offers valuable information to policymakers regarding family formation using assisted reproductive technology, and for the judiciary as they address commercial surrogacy, contract disputes, and the establishment of parental rights.

National Science Foundation (NSF)
Division of Social and Economic Sciences (SES)
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Susan Sterett
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University of California Berkeley
United States
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