Expecting Trouble: Surrogacy, Fetal Abuse, and New Reproductive Technologies

By Patricia Boling | Go to book overview

avenues of recourse. Let use use an analogy that I believe is appropriate. More women are injured, and often very much more grievously so, as a result of domestic violence than as a result of surrogacy. Yet the extent of domestic violence, and the serious harms that accrue to women as a result, do not motivate us to legally prohibit marriage or domestic partnerships. What we aim to do instead is to provide as many legal avenues and social structures as we can to enable women to leave battering relationships and seek redress for their injuries or to provide access to therapy that might stop the battering.

Similarly, what I propose in the case of surrogacy is not legal prohibition but a variety of policies that will warn women of the risks involved, make it possible for them to seek redress if their rights are violated during the process of functioning as a surrogate, help secure parental claims they do not wish to relinquish, and see that the interests of resulting children are protected.

Because I believe that both the benefits and the burdens of women's reproductive choices, whether as commercial or as gift surrogates or in the context of patriarchal relationships, are more alike than different, I think we should seek to devise legal solutions that would empower all women who are mothers. I believe that reforming our legal practices regarding custody in the ways I have suggested, and treating disputes over children who result from surrogacy arrangements as custody disputes, is a fair and principled way to protect the variety of parental claims that may arise and also the interests of the children involved. Legally recognizing a plurality of parental relationships may go a long way toward valuing and validating a variety of relationships coveted by both adults and children and away from viewing children as entities over whom adults should be driven to seek exclusive possession. 60


Notes
1.It has been pointed out there are problematic connotations to the term "surrogate" mother since it implies she is not the "real" mother. See for instance, Hilde Lindemann Nelson and James Lindemann Nelson, "Cutting Motherhood in Two: Some Suspicions Concerning Surrogacy" Hypatia 4( 3) ( Fall 1989). However, the common alternative, "contract motherhood," does not serve my purposes very well, since 1 intend to focus on commercial surrogacy without an enforceable contract. The alternative terms for "gift surrogacy" in the literature are terms like "altruistic surrogacy" and "noncommercial surrogacy," all terms that include the problematic word "surrogacy." In the absence of satisfactory semantic alternatives, I shall use the terms "commercial surrogacy" and "gift Surrogacy."
2
For similar views, see Katherine T. Bartlett, "Re-Expressing Parenthood" Yale Law Journal 98( 2):293-340 ( 1988); Martha A. Field, "The Case Against Enforcement of Surrogacy Contracts" Politics and the Life, Sciences 8( 2):199-204 1990); Mary Gibson, "Contract Motherhood: Social Practice in Social Context" Women and Criminal Justice, Vol. 1 & 2, ( 1991), also published in Criminalization of a Woman's Body. ed. Clarice Feinman ( New York:The Haworth Press, 1992), 55-99; Susan Muller Okin, "A Critique of Pregnancy Contracts" Politics and the Lift Sciences 8( 2):205-210 ( 1990).

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Expecting Trouble: Surrogacy, Fetal Abuse, and New Reproductive Technologies
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Foreword vii
  • 1 - Introduction 1
  • Notes 7
  • 2 - The Tailor-Made Child: Implications for Women and the State 9
  • Notes 19
  • References 21
  • 3 - Fetal Personhood: Political Identity Under Construction 25
  • Notes 44
  • References 51
  • 4 - Fetal Endangerment Versus Fetal Welfare: Discretion of Prosecutors in Determining Criminal Liability 55
  • Notes 75
  • References 79
  • 5 - A Gender Analysis of Policy Formation: the Case of Fetal Abuse 85
  • Notes 103
  • References 104
  • 6 - Punishment, Treatment, Empowerment: Three Approaches to Policy for Pregnant Addicts 109
  • Notes 126
  • References 131
  • 7 - The Aclu Philosophy and the Right to Abuse the Unborn 135
  • Notes 140
  • 8 - The Trope of the Dark Continent in the Fetal Harm Debates: "Africanism" and the Right to Choice' 142
  • Notes 152
  • 9 - "Surrogate Mothering" and Women's Freedom: a Critique of Contracts for Human Reproduction 156
  • Notes 171
  • References 174
  • 10 - The "Gift" of a Child: Commercial Surrogacy, Gift Surrogacy, and Motherhood 177
  • Notes 196
  • References 200
  • About the Contributors 203
  • About the Book 205
  • Index 207
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