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The Legalization of Emotion: Risk, Gender and the Management of Feeling in Contracts for Surrogate Labor

  • Author(s): Berk, Hillary Lisa
  • Advisor(s): Edelman, Lauren
  • et al.
Abstract

This dissertation combines in-depth, semi-structured interviews and content analyses of surrogacy contracts to address the interface of law and emotions. It unpacks the legal interests, risks, and social relationships that are situated at the nexus between a surrogate's womb and the hopes of intended parents negotiated within an unsettled and ambiguous reproductive field. Whereas economic and liberal legal models depict contracting as asocial, non-emotive, and gender neutral, I argue that contracts - especially in the context of surrogacy - are social artifacts both shaped by and designed to manage emotions, as well as gender, work, and parenting roles. Specifically, I examine how emotions, identity, and relationships are managed in surrogacy, and the rationale for doing so. I explain why and how attorneys who specialize in surrogacy, with the help of matching agencies and mental health counselors, anticipate and tactically channel a variety of emotions in surrogates and intended parents before, during and after the baby is born. I establish that "feeling rules" formalized in the contract, along with informal strategies like triage, are intended to minimize attachment, conflicts, and risk amidst a highly unsettled reproductive field, made up of lawyers, organizations, and mental health professionals. These rules and strategies are diffused and institutionalized in the reproductive field, and more broadly in society. I demonstrate how contracting practices make surrogacy a site where beliefs about gender, motherhood, and work constitute, and are constituted by, the content and meaning of law. While this dissertation explores the case of surrogacy, my institutional theory on the legalization of emotions could be transposable to other exchange relationships.

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