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How Parents are Made: A Response to Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy

11 Pages Posted: 20 Aug 2013  

Kimberly M. Mutcherson

Rutgers Law School

Date Written: August 1, 2013

Abstract

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.

Keywords: reproductive justice, assisted reproduction, equal protection

Suggested Citation

Mutcherson, Kimberly M., How Parents are Made: A Response to Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy (August 1, 2013). Indiana Law Journal, Vol. 88, No. 4, Fall 2013. Available at SSRN: https://ssrn.com/abstract=2313153

Kimberly M. Mutcherson (Contact Author)

Rutgers Law School ( email )

217 N.5th Street
Camden, NJ 08102
United States

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