Friday, March 19, 2021
Courtney Joslin, Surrogacy and the Politics of Pregnancy, 14 Harvard L. & Policy Rev. 365 (2020)
This Essay examines the regulation of pregnancy through a less commonly explored lens — surrogacy legislation. Initially, the dominant position of feminist advocates was to understand the practice of surrogacy as antithetical to women’s equality and reproductive autonomy. Due in part to their active and persuasive involvement, the early legislative trends tracked this position; most of the legislation enacted in the 1980s and early 1990s banned surrogacy. By the mid-1990s, however, the legislative tide turned. All of the comprehensive surrogacy statutes enacted since that time permit and regulate surrogacy. This shift was due in part to a growing sense among some feminists and others that permitting surrogacy can promote the goals of liberty and equality.
At times, however, too little attention was paid to the details of these permissive surrogacy schemes. As a result, permissive surrogacy statutes in some states may undermine these aims. This Essay focuses on one such type of statute: surrogacy provisions that authorize potentially sweeping control over the lives, bodily integrity, and decision making of people acting as surrogates. For example, a number of permissive surrogacy schemes expressly authorize contract clauses that require people acting as surrogates to undergo risky and invasive medical procedures over their clearly stated, contemporaneous objection. But such schemes are not inevitable. This Essay concludes by highlighting recent examples that illustrate how permissive surrogacy legislation can foster, rather than impede, the ability of people to control decisions about their own bodies