(Not) Just Surrogacy
93 Pages Posted: 26 Mar 2020 Last revised: 4 May 2021
Date Written: March 25, 2020
Scholars have long debated whether surrogacy furthers or inhibits equality and reproductive liberty. What has gone almost entirely unremarked upon, however, is whether and to what extent the ways states regulate surrogacy further these principles. This oversight is produced and re-produced by existing scholarship which remains focused on the threshold question of whether to ban or permit surrogacy. This focus obscures critical details that lay below the surface and inhibits theoretical engagement with their normative implications. This Article fills these gaps.
This consideration is critically important. Differences in permissive surrogacy laws hold profound implications for the participants. They may, for example, determine whether a person is a parent or a legal stranger. Or they may determine whether a person can make decisions about their own body or whether they can be compelled to undergo unwanted invasive medical procedures.
The obscured details also have consequences that flow well beyond surrogacy. Surrogacy law holds the potential to challenge family law rules that remain rooted in reproductive biology. Such a system poignantly harms families who are excluded under it. It also reinforces gender-based parentage norms. The details of surrogacy law also implicate fundamental liberty interests, including the right to form families of choice and reproductive autonomy.
This Article intervenes by unearthing these heretofore hidden distinctions. Based on a meticulous survey, this Article offers a novel, more complete typology of surrogacy law. It then theorizes the normative implications of these details, both for the individual participants and for law and policy well beyond surrogacy’s boundaries. Drawing from this uncovered story, this Article charts a more just path forward.
Keywords: Surrogacy, Equality, Discrimination, Marital Status, Sex, Sexual Orientation, Bodily Integrity, Autonomy, Reproductive Rights, Equal Protection, Due Process
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