The first surrogate mother contracts outraged the public.  Now, almost no one cares – except the satisfied parties to these mutually advantageous arrangements.  What happened?  Elizabeth Scott of Columbia Law School has a thought-provoking story to tell, with a strong, explicit dose of Timur Kuran. 

Scott’s most fascinating observation: The interaction between genetic preferences and the division of labor swiftly overturned popular and legal resistance.  In early surrogacy contracts – like the famous Baby M case – the surrogate was the biological mother of the child.  Now that’s a thing of the past.

Today 95% of surrogacy contracts involve IVF, and thus most surrogates are not the genetic mothers of the children they bear.  Under several contemporary laws…courts typically give intended parents’ claims more weight when the surrogate is not the child’s genetic parent… [S]urrogates themselves see this distinction as important in defining their relationship with the children they will relinquish. As one gestational surrogate put it, “I would feel completely different if it were my child.”

The move to gestational surrogacy has facilitated the change in the social meaning of surrogacy from a mother’s selling of her baby to a transaction involving the provision of gestational services… Although some have challenged the baby-selling argument all along, on the ground that fathers can not buy their own children, this objection gained little traction as long as mothers were seen as selling their children. But the gestational surrogate lacks a biological connection with the child she is nurturing and bearing, and thus her identity as the child’s mother is less powerful. The conclusion that the child is not in fact her child, but rather that she is providing contractual gestational services to the child’s “actual” parents resonates with many people.

Simple evolutionary psychology can explain why women would strongly prefer their own eggs.  But even when women can’t use their own eggs, they almost always want the surrogate and the egg-donor to be different women.  As Scott points out, there is a legal incentive to do so.  But comparative advantage probably plays a more important role.  High-achieving women like Kerry Howley have premium eggs, but they’d want a mountain of money to spend nine months pregnant on a stranger’s behalf.  Women willing to endure a pregnancy for a reasonable rate, on the other hand, rarely have eggs in high demand.

In response to these preferences and technological progress, the market splits apart three jobs joined together throughout history.  The egg comes from a young woman with great genes, the womb from a woman who doesn’t much mind being pregnant, and the mothering from a woman who wants a baby.  From an economic point of view, it’s Adam Smith’s pin factory all over again.  To some, it’s repugnant.  To me, it’s not merely logical, but life-affirming.