Monday, March 10, 2008
Noa Ben-Asher (Associate-in-Law at Columbia Law School) has posted The Curing Law: On the Legal Evolution of Baby-Making Markets on SSRN. Here is the abstract:
How has morality shaped current baby-making markets? What bargaining conditions have been set for individuals seeking to participate in those markets? The article offers a new paradigm to examine the legal regulation of reproductive technologies. The main argument is that a paradigm of cure has shaped historical and current legal baby-making markets. Namely, reproductive technologies that have historically been understood as forms of cure (such as sperm donations and egg donations) have developed into market commodities, while others (such as full surrogacy) which have not been understood as cure, have not. The article examines and critiques the cure paradigm. Specifically, the article challenges one current manifestation of the cure paradigm: the legal distinction between "full surrogacy" (where a surrogate impregnated using her own ova) and "gestational surrogacy" (where an embryo is created in vitro and then transferred into the surrogate‘s uterus). Gestational surrogacy has been established by many state courts and legislatures as a legitimate form of curing female infertility, while full surrogacy has generally been either prohibited or deemed unenforceable. This distinction is problematized in this article not only because it is based on contestable values, but also because it is has produced serious market failures that have effectively excluded many potential participants from entering the baby-making markets. Thus, the article argues that it is time to reevaluate the cure paradigm, and that the first step in this reevaluation involves the legalization of full surrogacy by state courts and legislators.