The payment for gestation resulting in a child, involving months of physical involvement for the surrogate and the transferring of a being from the womb of one woman to the arms of another is the quintessential exchange in commercial intimacy. It is commercial because it involves payment for services, yet intimate because it involves physical and emotional attachments and interdependencies. In this article, I consider how to capture the many benefits that this commercial exchange that surrogacy engenders, including the documented satisfaction of surrogates and intended parents with the process and low rates of litigation, while simultaneously taking into account the high levels of intimacy and personal, emotional attachments involved, which are also well-documented in empirical sociological accounts. I lean on notions of mixed commoficiation and the descriptive work of Viviana Zelizer, among others, to argue for regulation that protects the intimacy involved in surrogacy.
In the context of commercial surrogacy, among other possible regulatory provisions, I argue that the human dignity and vulnerability of the surrogate require contemplation of the possibility of legally enforceable post-birth contact between the surrogate and the intended family. According to sociological studies, surrogates do seem to detach from the baby they carry, not considering themselves to be mothers in the formal, traditional sense, but instead transfer intimate ties to the intended family and feel strongly that their bodily contribution to the process not be discarded upon birth but valued for the essentially human engagement it involves.
This article also considers the relevance for this discussion of international surrogacy, a growing reality which should not be ignored in any modern conversation about surrogacy. By exploring the nature of international surrogacy through the most common destination of India, I describe how international surrogacy exacerbates many of the potential commodification and exploitation concerns involved in surrogacy and, therefore, should be discouraged. While the intimacy in domestic surrogacy may be captured through relationships and regulations supporting such relations, intimacy is intentionally and practically avoided in international surrogacy in problematic ways. I therefore consider what states should be doing to encourage domestic systems of surrogacy and discourage international surrogacy short of outlawing such procedures or refusing to accept babies born of international surrogacy into their borders which will only hurt the children involved.