How Parents are Made: A Response to Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy
Kimberly M. Mutcherson
Rutgers School of Law-Camden
August 1, 2013
Indiana Law Journal, Vol. 88, No. 4, Fall 2013
This short paper responds to Andrea B. Carroll's article, 'Discrimination in Baby Making', which seeks to offer arguments to explain why some statutes that regulate access to surrogacy do so in a constitutionally infirm manner. I applaud Professor Carroll for taking on the issue of the ways in which state laws related to surrogacy potentially infringe on constitutional rights, but recognizing that discrimination exists across multiple axes related to reproduction does not tell us whether any or all of that discrimination is unconstitutional. Unfortunately, Carroll’s piece, while focusing on an issue worthy of deep analysis, fails its audience in some critical respects. First, Carroll does not sufficiently explain or contend with the complicated nature of surrogacy as a practice or as a subject of legal regulation. Second, she uses the precedent of Baby M. in contradictory and under-examined ways that weaken her analysis of the case. Third, and finally, she fails to adequately or convincingly make the case that statutes that discriminate on the basis of marital status violate equal protection. As a consequence, the article ultimately provides an inadequate account of how to protect the procreative interests of people who want or need to have babies with the assistance of a surrogate.
Number of Pages in PDF File: 11
Keywords: reproductive justice, assisted reproduction, equal protection
Date posted: August 20, 2013
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