Using Gestational Surrogacy and Pre-Implantation Genetic Diagnosis: Are Intended Parents Now Manufacturing the Idyllic Infant?
Using Gestational Surrogacy and Pre-Implantation Genetic Diagnosis: Are Intended Parents Now Manufacturing the Idyllic Infant?
Jami L. Zehr, 20 Loy. Consumer L. Rev. 294 (2008)
Twenty years ago a radical feminist criticized surrogacy, stating, “[t]he rise of the surrogate industry does not take place in isolation. It is part of the industrialization of reproduction. It is part of the opening up of the ‘reproductive supermarket.”’ Radical feminists contend that surrogacy is an exploitation of women’s reproductive capabilities. They argue that women become mere fetal containers, controlled by men who have the “vital fluid” needed for production of children, now seen as mere commodities, in order to further a male’s genetic future.
Persuasive arguments against these contentions show that they unduly rely on a presumption that women are unable to protect themselves from exploitation. The debate about surrogacy often overlooks the infertile woman who has the ability to create a child but is subsequently unable to carry the child to term. In 2002 the National Survey of Family Growth data on infertility indicated that two percent of women of reproductive age had an infertility-related doctor’s appointment. Surrogacy may be the infertile woman’s only chance at a biological child.
Views toward surrogacy have evolved over the years as new technology emerged so that now both legislatures and courts provide protection for surrogacy contracts. For example, in 2005 Illinois enacted a controversial new Gestational Surrogacy Act that provides contractual rights to parties involved in gestational surrogacy. Most importantly, it expressly allows for compensation of the surrogate above medical and legal expenses. In addition, the right to contract is a right women should be allowed to exercise as equal citizens under the Constitution, to affirm they have the same intelligence as men to control their lives, and the same right to privacy and control over their bodies. This shift in the attitude toward surrogacy indicates that viewing assisted reproductive technology as a market is no longer an unacceptable position. Below is a discussion on what assisted reproductive technologies and procedures entail. The discussion also includes a look at the law that has evolved, both seminal cases and specific statutes, regarding surrogacy. Finally, this article discusses the policy implications concerning infertile couples as consumers and surrogates as economic beings both generally and specific to the Gestational Surrogacy Act of Illinois.