Family Law Surrogacy Term Paper

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Commercial Surrogacy

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The issue of commercial surrogacy cuts straight to the heart of some of the most contentious discussions in bioethics and law, because the sheer range of stakeholders, coupled with deeply-rooted cultural beliefs regarding the sanctity of the body, the mother, and the child, makes it so that any discussion of commercial surrogacy is certain to produce uncomfortable confrontations between tradition, commerce, and best practices. In the past, legislation and the practice of law has attempted to give due deference to the concerns of the stakeholders involved, but it has been difficult as relaxed notions of the body and its relation to commerce and labor confront traditional ideas about motherhood, gestation, and the rights of a parent. In particular, even as advancing humanitarian and humanist ideals suggest that a woman should have the right to control her body as she sees fit, even if that includes renting out her womb for gestation, in practice surrogacy remains circumscribed within larger social structures that control and coerce women, thus making the decision to become a surrogate problematic in practice. This essay seeks to explain the reasons behind this state of affairs while arguing in favor of legal and social support for commercial surrogacy, albeit with a reevaluation of the contractual obligations that must be imposed on the surrogate herself. In practice surrogacy contracts are unenforceable if not explicitly banned, and overcoming this state of affairs will be a necessary step to towards reconciling outdated laws and assumptions with the advancements of contemporary technology and society.

Term Paper on Family Law Surrogacy Assignment

The normalization of commercial surrogacy has led to a situation in which the right to control one's body and the products of one's body by becoming a surrogate is complicated by the rights of the child's commissioning parents, who should retain control over the child even in the event that the surrogate no longer wishes to give it up. Essentially, the normalization of surrogacy and the relative immediate bodily autonomy it offers suggests that surrogates who desire to keep the child they carry should no longer be able to rely on notions of an inviolable bond between mother and child in order to do so, because the rule preventing courts from forcing the surrogate mother to give up the child cannot reconcile the decline in importance of the mother-child connection due to the commercialization of the womb. In other words, the economic and bodily freedom offered by commercial surrogacy demands an attendant rise in the obligation to follow through on commercial surrogacy contracts.

Only by adapting the current legal system to reflect this reality can contemporary society hope to come to terms with the inexorably changing definitions of family, reproduction, and motherhood as they relate to the development of new technologies.

In the larger context of the family's status as a socially-created and defined phenomenon, the topic of commercial surrogacy and its implications for family law is a relatively novel issue, because the technology that makes surrogacy possible is fairly new. As with nearly all new technology, the law lagged behind the development of surrogacy and in-vitro technology over the course of the 1970s, such that by the late 1970s and early 1980s, industry advisory boards and panels were frantically trying to organize some sort of cohesive approach to bio-ethical regulations, including regulations concerned with surrogacy. These efforts represented the earliest attempts to codify rules and regulations governing surrogacy, and offer a useful starting point for considering how the law should treat surrogacy and the rights holders involved in a contemporary context.

As Jacqueline Priest notes, "in 1982, in a somewhat belated reaction to the rapid pace of medical advances in the treatment of infertility, the British government appointed a committee […] to consider what policies and safeguards should be applied to techniques for alleviating human infertility, and to the associated area of embryological research."

By the time the committee presented its findings two years later, "more limited legislation had already reached the statute book, dealing with the status of AID (artificial insemination by donor) children and with commercial surrogacy agencies," creating an environment of uneven standards and haphazard regulation.

Perhaps the most important thing to come out of this committee was its decision that surrogacy itself was undesirable, and its recommendations that effectively prioritized the gestating mother over the rights of the commissioning parents.

Before continuing this discussion further, it will be helpful to first point out the ethical questions surrogacy raises as it relates to the surrogate mother alone, because determining what it means to rent out one's body in the context of contemporary society first requires that one accurately understand the ethical and social issues raised by the prospect. In particular, one must be careful to consider how the prospect of surrogacy, while obviously a question of female autonomy, can actually serve to lessen female autonomy by keeping the female body squarely in the realm of child production. Essentially, while surrogacy does offer women the option to use their bodies for financial gain, because this option is circumscribed by a social system that disadvantages women in the first place, it is difficult to convincingly argue that the decision to participate in surrogacy is ever made without duress or coercion.

The notion that surrogacy could simultaneously grant and restrict female autonomy is important to tackle from the outset, because one cannot hope to intelligibly deal with the conflicting rights of the surrogate and commissioning parents without first settling on the rights and responsibilities of the surrogate as such. On the one hand, surrogacy presents an almost self-evidently positive option for women, because it allows women to take benefit monetarily from a biological fact that has, for much of human history, served largely as a means or justification for controlling the behavior of women. In this light, a woman's option to choose to be a surrogate or not presents a choice and a right similar to the right to have an abortion, because the decision about how to use a woman's body should reside with that woman.

However, numerous feminists have proposed problems with this interpretation, with the chief amongst them being the fact that commercial surrogacy, because it exists in a system of exchange, and furthermore, a system that has historical and systematically disadvantaged women, cannot help but be exploitative.

In particular, feminists and other ethicists have argued that surrogacy restricts a woman's autonomy, because even though a surrogate might enter into a contract "willingly," in the larger scheme of things that woman's choices have been dictated by a larger system of exploitation and the disempowerment of women.

In this light, all surrogacy would be seen as exploitative and limiting of autonomy, because it is merely a more dramatic and visible example of the coercion and capitalist exploitation that occurs in every other area of contemporary life. However, for this very reason the ethical argument against commercial surrogacy seems to dissipate, because it becomes difficult to argue that surrogacy presents a special case of exploitation, rather than simply being the most recent example in the exploitation that occurs as a result of any labor arrangement under capitalism.

Furthermore, because surrogacy provides women with a way of making money unavailable to men, one could argue that it actually helps to expand women's autonomy and opportunity in an inequitable system. Of course, there are questions as to who actually receives the majority of the income from surrogacy arrangements, but this is more an argument in favor of better contracts than an argument against commercial surrogacy as such.

The fact that some Marxist feminists view surrogacy as an act akin to prostitution might actually be a point in favor of it, because in both cases there is the potential for women to actually gain greater control over their bodies, even if in practice that control is total than it should be.

In fact, research suggests that in practice surrogacy contracts can impose genuine limitations on women while rewarding those responsible for setting up the contract, suggesting that what is needed is not less surrogacy but rather greater regulation and standardization of the surrogate's rights.

In this light, it seems difficult to argue against the allowance of commercial surrogacy except from a kind of cultural or traditional perspective, meaning a rejection of commercial surrogacy not because it violates a certain belief in fundamental rights, or because it is inherently and particularly more exploitative than other uses of the human body, but because it threatens to disrupt traditional notions of the family. However, as will be seen, this position is simply the last holdout of an outdated and ultimately insufficient notion of what it means to be a family, what it means to value the human body, and what are the best methods for achieving a particular social and political goal.

While this resistance to surrogacy is the least valid or convincing, because it ultimately depends on the arbitrary cultural meaning attributed to surrogacy, pregnancy, and "the significance we give to the human body," all things which affect human… [END OF PREVIEW] . . . READ MORE

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