Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-29T13:56:11.191Z Has data issue: false hasContentIssue false
  • English
  • Français

Surrogacy: A Preferred Treatment for Infertility?

Published online by Cambridge University Press:  28 April 2021

Nadine Taub
Get access Rights & Permissions [Opens in a new window]

Extract

No matter what one's position, Baby M is a difficult case. Once a child of contract parenthood has come into being, sorting out the competing claims that changed intentions produce is inevitably a troubling process. Even when taken in the abstract, surrogacy arrangements raise disturbing questions: Can we expand the available options for forming families without risking sex, race, and class exploitation? Can we address the pain experienced by those unable to conceive and bear children without commodifying human life? Whatever our views of surrogacy, we cannot hope to resolve the dilemmas it poses without acknowledging and seeking to address the pain of infertility.

Given what we know about infertility, is commercial surrogacy—however troublesome—an appropriate response? Even with only partial information before us, the answer would seem to be a fairly clear no. Surrogacy is at best an after-the-fact accommodation to the problem of infertility, available only to those with substantial financial resources.

Type
Public Health
Information
Law, Medicine and Healthcare , Volume 16 , Issue 1-2 , Spring 1988 , pp. 89 - 95
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Mosher, W.D., “Fecundity and Infertility in the United States,” American Journal of Public Health, 78 (Feb. 1988): 181–82.Google Scholar
Pratt, W.F.et al., “Infertility—United States, 1982,” Morbidity and Mortality Weekly Reports, 34 (1985): 197–99. Figures from 1976 suggest that black infertility rates were twice that of whites. Aral, S. D. Cates, W. Jr., “The Increasing Concern with Infertility: Why Now?,” Journal of the American Medical Association, 78 (Nov. 1983): 2327–31.Google Scholar
Mosher, , supra note 1.Google Scholar
Id.Google Scholar
Id.Google Scholar
Aral and Cates, supra note 2.Google Scholar
U.S. Congress, Office of Technology Assessment, Infertility: Medical and Social Choices (1988), 51 (hereafter cited as “OTA, Infertility”).Google Scholar
Aral and Cates, supra note 2.Google Scholar
Id.Google Scholar
Id.Google Scholar
New York Times, Oct. 12, 1987, sec. B5. The connection between the appearance of articles about the loss women without children feel and the movement of women into the traditionally male public sphere in the late 1960s and 1970s has probably not been traced. The relationship is worth examining, however, just as the relationship between women's wartime role and the 1950s' cultural emphasis on femininity is worth examining.Google Scholar
Aral and Cates, supra note 2; Menken, J.et al., “Age and Infertility,” Science, 233 (1986): 1389–94. Pratt, supra note 2 (sexually transmitted diseases account for an estimated 30 percent of infertility in some high-risk U.S. populanons).Google Scholar
Megary, E.et al., “Infections and Male Fertility,” Obstetrical and Gynecological Scrutiny, 42 (1987): 283–90.Google Scholar
OTA, Infertility, supra note 7, at 87.Google Scholar
See, e.g., Jane Does 1–4 v. Utah Department of Health, 776 F.2d 253 (10th Cir. 1985) (Utah's parental consent requirement for contraceptive services provided to minors in publicly funded clinics conflicted with Tide X of the Public Health Services Act, 42 U.S.C.A. §3100 et seq.); Planned Parenthood Association of Utah, 810 F.2d 984 (10th Cir. 1987) (Utah law requiring providers to obtain written parental consent in order to obtain Medicaid reimbursement for contraceptive services for unemancipated minors violates the federal Medicaid statute); Planned Parenthood v. Heckler, 712 F.2d 650 (D.C. Cir. 1983) (federal regulations requiring Title X–funded family planning services to notify a parent of an unemancipated minor within ten days of providing prescription contraceptives and mandating compliance with all state parental-consent requirements impermissibly conflicts with Title X). For arguments regarding the unconstitutionality of such provisions, see Paul, E. Klassel, D., “Minor's Right to Confidential Contraceptive Services: The Limits of State Power,” Women's Rights Law Reporter, 10 (Spring 1987): 45–64.Google Scholar
In Kendrick v. Bowen, (657 F. Supp. 1547 [D.D.C. 1987]), the Adolescent Family Life Act (42 U.S.C. §300z et seq.) was found to constitute an establishment of religion, and the requirement that applicants involve religious organizations was enjoined. Vacating the injunction on direct appeal, the Supreme Court reversed and remanded for a determination as to whether the AFLA is currently being administered impermissibly and, if so, the appropriate remedy. (Bowen v. Kendrick, 57 U.S.L.W. 4818, June 29, 1988.) The teachings of the Family of America's Foundation illustrate the misinformation disseminated by programs funded under the statute. In addition to teaching the ineffective Billings ovulation method of family planning, “because it helps realize that the family is an integral part of the church,” FAF taught adolescents that condoms are “a pollution of their own bodies” and were “messy and unnatural,” caused “irritations,” and were “never” recommended. Brief of the American Public Health Association et al. as Amici Curiae, Bowen v. Kendrick, U.S. Supreme Court, October term, 1987, Nos. 87–253, 87–431, 87–462, 87–775 at 22.Google Scholar
See, e.g., Planned Parenthood Affiliates of California v. Van de Kamp, 226 Cal. Rpt. 361 (Cal. App. 1986), app. den. (state attorney general's interpretation of Child Abuse Reporting Law as requiring reporting to the state of all adolescents under fourteen seeking reproductive health care violates privacy guarantee in California state constitution).Google Scholar
See, e.g., Keye, W., “Strategy for Avoiding Iatrogenic Infertility,” Contemporary OB/GYN, 19 (March 1982): 185–95.Google Scholar
Musaker, S. Garcia, J. Jones, H., “Experience with Diethylstilbestrol-Exposed Infertile Women in a Program of in Vitro Fertilization,” Fertility & Sterility, 42 (1984): 20–24.Google Scholar
OTA, Infertility, supra note 7, at 67–68.Google Scholar
See id.: 73–74.Google Scholar
Consideration should perhaps be given to developing legislation similar to New York's Public Health Law §2404, McKinney's 1988 Supplement, mandating the commissioner of health to develop an informed-consent standard that specifies all forms of treatment for use in obtaining consent in breast cancer cases.Google Scholar
See, e.g., Bill A.3821, now before the New York State Legislature, which would mandate reporting of hospitals' Cesarean rates.Google Scholar
See Gallagher, J., “Fetus as Patient,” in Cohen, S. Taub, N., eds., Reproductive Laws for the 1990s (forthcoming) [hereafter cited as “Reproductive Laws”].Google Scholar
See, e.g., “Professor Is Charged with Lying for Maker of Birth Control Device,” New York Times, March 4, 1988, sec. A1.Google Scholar
See, e.g., H.R. 1115, “The Uniform Product and Safety Act,” now pending in Congress. H.R. 1115 would eliminate all existing and future state grounds for recovery by victims of defective products and replace them with four narrowly tailored state grounds. The bill would also add several new federal defenses and immunities, permit states to develop additional protections, and limit the availability of punitive damages.Google Scholar
Serious questions have been raised, for example, about the use of Chapter 11 bankruptcy proceedings by the A.H. Robins Company to limit its liability for the injuries suffered by users of the Dalkon Shield. See “Women Urged to Reject Robins Plan,” Washington Post, May 3, 1988, sec. C3; “A Legal and Medical Tangle,” Washington Post, May 4, 1988, sec. B3.Google Scholar
In 1982, 9.4 million single women and couples reported that they had“elected” to be sterilized. Henshaw, S. Singh, S., “Sterilization Regret among U.S. Couples,” Family Planning Perspectives, 18 (Sept./Oct. 1986): 238.Google Scholar
Id.Google Scholar
Friedman, P., The Rights of Mentally Retarded Persons (1976), pp. 115–16.Google Scholar
Relf v. Weinberger, 372 F. Supp. 1196, 1199 (D.D.C. 1974).Google Scholar
Walker v. Pierce, 560 F.2d 609 (4th Cir. 1977).Google Scholar
Madrigal v. Quilligan, U.S. Dist. Ct., C.D., Calif., No. CV-75-2057-JNC (June 30, 1978).Google Scholar
Family Planning Digest, 1 (Jan. 1972): no. 1 p. 3.Google Scholar
Relf v. Weinberger, supra note 31.Google Scholar
Clarke, A., “Subtle Forms of Sterilization Abuse: A Reproductive Rights Analysis,” in Arditti, R. Klein, R.D. Minden, S., eds., Test-Tube Women (1984), 195.Google Scholar
See Rodriguez-Trias, , “A Model for Advocacy from Proposal to Policy,” in Reproductive Laws, supra note 24.Google Scholar
U.S. Congress, Office of Technology Assessment, Reproductive Health Hazards in the Workplace (1985).Google Scholar
OTA, Infertility, supra note 7, at 69.Google Scholar
Id.: 51.Google Scholar
See, e.g., Brief Amicus Curiae on Behalf of the American Public Health Association et al., International Union, UAW v. Johnson Controls, U.S. Ct. App., 7th Cir., No. 88–1308.Google Scholar
See Bertin, J., “Reproductive Hazards in the Workplace,” in Reproductive Laws, supra note 24.Google Scholar
Id.Google Scholar
Blessed Events and the Bottom Line: Financing Maternity Care in the United States, A Study by The Alan Guttmacher Institute, 1987, p.2.Google Scholar
See, e.g., U.S. Congress, Office of Technology Assessment, Healthy Children: Investing in the Future (1988).Google Scholar
See, e.g., Gold, R. Kenney, A. Singh, S., “Paying for Maternity Care in the United States,” Family Planning Perspectives, 19 (Sept./Oct. 1987): 190–211.Google Scholar
Id.Google Scholar
See, e.g., “Massachusetts Passes State Health Insurance,” Nation's Health (May-June, 1988): 1, describing that stare's newly enacted plan offering universal health insurance to every citizen in the state.Google Scholar
See, e.g., Office of Technology Assessment, Healthy Children, supra note 45, discussing, inter alia, expansion of Medicaid benefits and federal grants for improving newborn screening.Google Scholar
See, e.g., Note, “Childbearing & Nurse-Midwives: A Woman's Right to Choose,” N.Y.U. Law Review, 58 (1983): 661; and “U.S. Limits Stays of Foreign Nurses,” New York Times, April 10, 1988, p. 1.Google Scholar
See, e.g., OTA, Infertility, supra note 7, at 52.Google Scholar
Wikler, N. Fabe, M., Up Against the Biological Clock (1979).Google Scholar
See Abraham v. Graphic Arts Int'l Union, 660 F.2d 811 (failure to provide adequate leave policy having a disparate impact on women violates Title VII of the Civil Rights Act of 1964); De la Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978) (college's failure to provide day care facilities for students having a disparate impact on women violates Title IX of the Education Act Amendments of 1972).Google Scholar
The Family and Medical Leave Act—which is now pending in Congress and which would provide job guarantees for employees of both sexes who take disability (including pregnancy) leaves and/or dependent care leaves—might be a start. See H.R. 925 and S. 249.Google Scholar
See, e.g., Select Committee on Children, Youth, and Families, U.S. House of Representatives, Families and Child Care: Improving the Options (98th Cong., 2d Ses5., Sept. 1984).Google Scholar