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A Civil Liberties Analysis of Surrogacy Arrangements

Published online by Cambridge University Press:  28 April 2021

Larry Gostin
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Extract

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.

Type
Civil Liberties
Information
Law, Medicine and Healthcare , Volume 16 , Issue 1-2 , Spring 1988 , pp. 7 - 17
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

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References

There are three distinct roles that are potentially involved in a surrogacy arrangement: The woman who gestates the child and who gives birth (whom I will refer to as the gestational mother); the woman who donates an egg without bearing the baby (the egg donor is usually, but not necessarily, the gestational mother); and the man who provides the sperm (whom I will refer to as the genetic father).Google Scholar
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