Cohen: "Borrowed Wombs: On Uterus Transplants and the 'Right to Experience Pregnancy,'"

I. Glenn Cohen (Harvard) recently posted to SSRN his article Borrowed Wombs: On Uterus Transplants and the "Right to Experience Pregnancy," The University of Chicago Legal Forum 127 (2022).  Here is the abstract:

In December 2017, it was announced that the first birth from a uterus transplant in America occurred at Baylor University (earlier births had been reported from Sweden). In this case the uterus came from a living stranger, but in other reported cases the uterus has been donated by a family member (such as a mother or sister). In still other cases, the uterus has come
from a cadaver, as discussed below literally life brought into being and nurtured from death. In the future, it may also be possible to transplant uteruses on to the male pelvis, allowing trans women assigned male at birth or cisgender men to experience pregnancy, though the science is not yet quite there yet.

These transplant raise a host of interesting questions: would it better to get needed uteruses from
the dead rather than the living? Should uterus donors be paid? For deceased donors, is a general authorization (as with kidney donors) good enough, or should there be a requirement that authorization be given to this specific organ to be donated? Do private or public payers have an obligation to pay for these transplants as they would kidney or liver transplants, or should we think about them more like infertility treatments or even plastic surgery (to use a purposefully provocative comparison)? How, if at all, does the answer differ if the ultimate transplant recipient is a man or a trans person?

This article, part of a symposium issue, does not purport to resolve all or even most of those questions. Its narrower focus is to compare uterus transplants to other ways to achieve parenthood, especially surrogacy and adoption, to evaluate what kinds of rights claims those who seek to use uterus transplants are making against the state and offer some tentative thoughts on how those claims should be treated. Among other things, I consider the way more recent reproductive technology innovations subtly shift the rights claims at issue from rights to *mimick* what is possible through non-assisted reproduction to right to *extend* such reproduction. I then discuss two remaining family law issues with living uterus donors, one related to intra-familial donation and the other to uterus donor anonymity.