Proponents of surrogacy arrangements assert that a married couple's right to procreative autonomy includes the right to contract with consenting collaborators for the purposes of bearing a child. The right to genetic continuity and to rear offspring are all part of the right of reproductive choice for the contracting father and his partner.

Critics of surrogacy arrangements similarly cite reproductive autonomy as the basis for their claim that women cannot be compelled by contract to use their bodies in particular wayeither to forgo the right to abortion or to be fetal containers. The right to autonomy over her own body and to rear the offspring she has borne are all part of the mother's reproductive freedom.

Both proponents and critics of surrogacy arrangements, therefore, claim that their positions maximize freedom and liberty. Each position, of course, focuses on the autonomy of the party the commentator favors; the analysis is invariably outcome-determinative, without enunciating a neutral civil liberties framework. Neither proponents nor critics define clearly what the right to procreate entails, or what resolution is warranted when there is a conflict.

The growing popularity of noncoital solutions to infertility has raised questions about the need for public policies to regulate these techniques. While surrogacy has dominated public attention, controversy has also surrounded in vitro fertilization (IVF), embryo freezing, and gamete donation.

The policy concerns arise from the potential impact that the means of noncoital reproduction—embryo manipulation or use of gamete donors and surrogates—could have on offspring, collaborators, the family, and gender-based reproductive roles. For example, IVF techniques involving the creation and manipulation of human embryos may harm embryos and the offspring to which they lead. Noncoital techniques involving gamete donors and surrogates raise issues of offspring welfare, the interests of collaborators, exploitation of women, and effects on the family and society generally.

A basic question for public policy is the scope of private discretion over noncoital means of forming families. Should the state prohibit or regulate use of these techniques, or should their use be left to the free choice of infertile couples, collaborators, and physicians? Since state limits on reproductive choice are necessarily problematic, the issue is whether noncoital reproduction poses risks so significantly different from coital reproduction that regulation is justified.

How did surrogate motherhood evolve from a hare-brained, fly by night idea of the late 1970s into one that had at least some mainstream, middle-class support in the mid-1980s? Many explanations have been suggested. Although the rate of infertility has not increased, infertility is no longer a secret, and there are major public support groups, like RESOLVE, that advocate for infertile couples. New and powerful techniques like IVF (in vitro fertilization) have been developed, and although they help very few people, they have been widely publicized and approved. And babies are fashionable again. As one movie critic put it: Men and women do not fall in love with each other in the movies anymore. They fall in love with babies. Babies are the new lovers—unpredictable, uncontrollable, impossible and irresistible.

These explanations all have some merit. But the core of surrogate motherhood lies in the modern fairy tale that babies can properly be viewed as a consumer product for those with money to purchase them, and that by permitting this transaction we will all live happily ever after. As a product babies have been hyped by slick, white, middle-class professionals and advertised in the free-market environment of the 1980s. We are asked not to look behind the resulting children to see their lower-middle-class and lower-class mothers.

Jay Katz has been a pioneer in exploring the ethics of human subjects research. We are all the more grateful because he has given us a map of the landmarks along the path of what he has called his personal odyssey. That intellectual journey, from the horrors of Auschwitz to the callous disregard of human rights in the Tuskegee syphilis study, can serve as a guide to us today as we attempt to measure and direct the impact of AIDS on the ethics and regulation of research.

Professor Katz's account of his odyssey begins with the sources of his concern. At Yale Law School in 1966, with his colleague Richard Donnelly, he began teaching what was probably the first semester-long seminar on human experimentation. In preparation he read for the first time the trial transcripts of the Nuremberg proccedings against the Nazi physicians. I had lost most of my cousins, aunts, and uncles in the Holocaust, he writes. How many of them, I wondered, had been condemned to participation in these experiments?

Among the many new forms of human reproduction, none raises more problems of public policy and of law than the practice of what is known, rather inaccurately, as surrogate motherhood or surrogacy. The central policy issue is settling on the paradigm that should govern surrogate motherhood, a model of family relations (adoption) or of contractual relations (sale of a product or service). And the central legal issue is whether any restrictions on personal choice that follow from the policy selected—and especially from a rejection of the contractual model with its implication of free choice—are constitutionally permissible.

We conclude that surrogate mother arrangements should be handled from the perspective of adoption. As recent judicial decisions have demonstrated, existing law on parents and children is largely adequate, and the emergence of surrogacy as a social practice does not require major law reform efforts. Furthermore, neither these rulings nor legislation proposed in many jurisdictions to ban commercialized surrogacy intrude impermissibly on the range of choices about reproduction protected by the Constitution of the United States.

The recent case of Baby M has brought surrogate motherhood to the forefront of American attention. ultimately, whether we permit or prohibit surrogacy depends on what we take to be good reasons for preventing people from acting as they wish. A growing number of people want to be, or hire, surrogates; are there legitimate reasons to prevent them? Apart from its intrinsic interest, the issue of surrogate motherhood provides us with an opportunity to examine different justifications for limiting individual freedom.

In the first section of this article, I examine the Baby M case and the lessons it offers. In the second section, I examine claims that surrogacy is ethically unacceptable because it is exploitive, inconsistent with human dignity, or harmful to the children born of such arrangements. I conclude that these reasons justify restrictions on surrogate contracts, rather than an outright ban.

Commercial surrogacy presents complex legal issues; the problems that it does not present are those of high tech reproductive medicine. All the new techniques for overcoming infertility, such as in vitro fertilization and the like, are medically complex but—as long as they involve a married couple and no third-party donors—legally simple. Surrogacy is so medically uncomplicated that it can be done without any physician involvement, but it is the most legally complicated means of providing a baby for an infertile couple.

From a time in England when fathers could sell their children into slavery to a day in which the legal system supposedly protects the best interests of the child, the common law increasingly respects the rights of children as individuals with constitutional rights and not as chattels of their parents. If the courts accept commercial surrogacy as a legitimate enterprise, it seems that we have again reverted to the concept of child as chattel.

As a university administrator, I worry about the form and substance of undergraduate education and about ways to encourage interdisciplinary perspectives on problems in a research university dominated by particular specialized disciplines. I also continue to teach a seminar in Cornell's Biology & Society Program for undergraduates and to assist others in teaching a course called Medical Humanities for second-year medical students. In the course of these administrative and teaching activities, I find myself returning to Jay Katz's Experimentation with Human Beings —both as model for teaching and as a perspective for institutional learning and change —as a model for professional action.

Jay Katz's approach to research with human subjects provides an excellent framework for analyzing the nature of teaching not simply in professional or continuing education programs in law, medicine, or social work, but in undergraduate programs as well. In my view, changing the ways in which universities help students to learn at all levels can be analyzed through the process of reflection, action, and evaluation developed in Katz's seminal work on human experimentation and most recently expounded in his suggested reforms of professional medical education in The Silent World of Doctor and Patient. For Jay Katz, the scholar who guided me to the realization that teaching and administering within the university at all levels is essentially a problem in human research, I offer this tribute.

In The Silent World of Doctor and Patient, Jay Katz painted a portrait of medical practice in which physicians voices dominate and drown out others with at least equal and often superior claims to be heard. Many physicians today, however, complain that their voices are no longer sufficiently heard in the provision of medical care. Some are angry at this perceived turn of events; they see intrusions by unscrupulous lawyers, by unsympathetic judges and lay jurors, by greedy malpractice insurance companies and by ham-handed bureaucratic regulators. These angry physicians mimic Rodney Dangerfield's comic complaint that they don't get no respect. And many of these angry physicians regard the influential work of Jay Katz as part of their problem.

Another contemporary group of physicians evaluate Jay's work in a different mood. These physicians, typically younger members of the profession, are intrigued by Jay's analysis and often seem eager to implement it—to solicit patients informed consent, to invite (sensible) judicial or legislative regulation, to eschew the old model of the infallible father-physician.

Is there anything ethically wrong with surrogate motherhood? Many people confess their inability to articulate their opposition in rational terms, yet they feel uneasy. The practice arouses negative emotions ranging from mild distaste to revulsion. Others say there is nothing wrong, in principle, with surrogate motherhood. It is a way of helping infertile women fulfill a fundamental human longing and, therefore, should be permitted and even facilitated. Many who are not fundamentally opposed to surrogacy nonetheless maintain that the practice ought to be regulated, in order to prevent abuses and to provide a mechanism for resolving conflicts that may develop in particular cases.

Surrogacy arrangements have been condemned by Roman Catholic spokesmen, in a legal brief by a conference of bishops in New Jersey, and by the Vatican in a statement issued by the Pope in March 1987. Feminists have denounced the practice, using rhetoric rather than argument, with the slogan woman as vessel. A group of wormen who agreed to bear children under surrogacy contracts has convened to speak out against such arrangements.

Proponents of the new reproductive arrangements tend to speak in terms of reproductive freedom, the right to be a parent, contractual obligation, and infertility therapy, while opponents speak of the natural bond of motherhood, the gift of a child, the integrity of the family, and playing God with the reproductive process. Underlying the rhetorical slogans are deep differences about the values that should guide evaluation of the disputed practices and policies. The proponents of surrogacy contracts place a high value on freedom and autonomy, and consequently on legally binding agreements to embark on birth projms that will alleviate for some the physiological blight of infertility. The opponents of surrogacy and other forms of nontraditional reproduction, on the other hand, defend the physical and genetic foundations not only of parenthood but also of marriage and family. The right to self-determination, they hold, should not extend beyond the personal relationships derived from the basic biological realities of marriage cemented sexually and natural parenthood.

Over the past decade we have witnessed a remarkable change in the courts, and presumably in societys, attitude toward the care of the terminally ill patient. In a series of court decisions, judges have consistently ruled that the terminally ill patient's autonomy must be respected, even if that means limiting the patient's care when that is the patient's wish. Moreover, courts have allowed the incompetent patient's family and doctors, when they agree, to make substituted decisions to limit care, that is, decisions which attempt to replicate the choices that the patient would have made about his own treatment were he able to do so. Courts have not, however, offered guidance on those situations in which the incompetent patient's family and physicians disagree with respect to their recommendations concerning the course of therapy the patient would choose. Most importantly, courts have failed to establish clear limits on professional authority in situations where disagreements occur.