Applications Of Feminist Legal Theory

C. Reproductive Technology and Adoption

c. Reproductive Technology and Adoption Introduction THE ISSUE OF WOMEN'S reproductive freedom currently centers on the new reproductive technologies.l Primary among these are in vitro fertilization (IVF), embryo transplants , and surrogate motherhood. Several social conditions contributed to the development and use of these technologies: an increase in infertility resulting from delayed childbearing, harmful contraceptive methods, and pelvic inflammatory disease; and the shortage ofinfants for adoption.2 Whereas feminist concern with reproductive control formerly focused on the means to prevent reproduction (contraception and abortion ), contemporary concerns address the means to facilitate reproduction.3 Many feminists oppose such technology. The vehemence of their opposition is all the more surprising in the face of Widespread feminist support for reproductive freedom in contraception and abortion.4 Foremost among the issues raised by the new reproductive technologies are the implications of the technology for the subordination ofwomen. A controversial subject of debate is whether the new technologies enhance or impede women's equality. The controversy raises the equality versus difference debate, which has figured prominently in maternity policies and occupational segregation, in yet another context . Its reemergence is not surprising, because the reproductive technologies lie at the intersection of motherhood and employment.5 Flora Davis characterizes the controversy thus: [T]he feminist divide surfaces once again. Equality feminists argued that a woman had a right to try test-tube fertilization or surrogate motherhood if she wanted to; the choice should be hers. Difference feminists, convinced thatwomen needed special treatment (in this case, protection), insisted that some of the new Copyrighted Material 1041 1042 I REPRODUCTIVE TECHNOLOGY AND ADOPTION technologies should be banned or at least recognized for what they were-men's latest attempts to control female fertility and make use ofwomen's bodies.6 Surrogacy, despite the small number ofsurrogate mothers,7 has provoked the most heated debate. The practice first came to public attention in 1976, when a woman advertised for a "healthy, blue-eyed woman who is willing to carry my husband's child."8 Articles slowly began appearing in the legal literature, culminating in a vast body ofliterature .9 Legal professionals were influential in the practice from its beginning, many establishing commercial surrogacy organizations.I0 Feminist battle lines were drawn in the case ofln the Matter of Baby M.II Feminists submitted amici curiae briefs to the NewJersey Supreme Court on both sides of the issue . The National Association of Surrogate Mothers argued that surrogacy enhanced women's control of reproduction; opponents argued that reproductive technologies commercialized reproduction and inhibited women's freedom and opportunities.12 In the case, a married couple entered into a contract with Mary Beth Whitehead for her to be inseminated with the husband's sperm. When Whitehead gave birth, she was unable to relinquish the child and revoked the contract. The parties soughtjudicial resolution . Upholding the contract, the trial court awarded custody to the couple based on the best-interests-of-the-ehild standard and recognized a constitutional right ofprivacy to make procreative choices that included surrogacy. Reversing, the NewJersey Supreme Court held the surrogacy contract violative of public policy and rejected the couple's constitutional claims. Nonetheless, the court awarded custody to the couple (conferring visitation on Whitehead) based on the best-interests standard. The case prompted considerable legislative activity. In its aftermath, 27 states introduced 76 bills; 10 state commissions studied the issue; and 4 states made surrogacy contracts unenforceable.13 By the end of 1990, 13 states had legislation.14 Although most statutes make surrogacy agreements void, a few permit such arrangements subject to state regulation.15 The National Conference of Commissioners on Uniform State Laws, as well as the Family Law Section of the American Bar Association, have promulgated modellegislation.16 In addition, a number of countries established commissions to recommend legislation,!' the most renowned ofwhich was the British Warnock Committee. As in the pornography campaign, feminist forces quickly coalesced around the surrogacy issue. Both liberal and radical feminists opposed surrogacy in legislative hearings .18 On this battleground, as in the pornography campaign, antisurrogacy feminists aligned with conservative groups normally thought of as antifeminist.19 Feminist Perspectives Commentators date the origins of feminist responses to the new reproductive technology to the mid-1960s.2o Women first hailed the liberating effects of oral contraceptives but later became disillusioned with medicalization of childbirth, the health risks Copyrighted Material Introduction I 1043 of contraceptives, the prioritization of the fetus, and the...