From Coitus to Commerce: Legal and Social Consequences of Noncoital Reproduction

This paper argues that there is an urgent need for the creation and clarification of a legal framework within which contemporary efforts to produce or procure children can take place. State legislatures should act now in order to avoid the kind of crisis that confronts Great Britain, where an infant girl, the product of a breached surrogacy contract, has been impounded by a British court. While the court ponders how to determine the legal parentage of this particular child, Parliament considers criminal penalties for those who arrange surrogacy contracts and general regulations to constrain IVF and ET research and practice. The elements of the framework I propose derive from ·a principle of “supportive neutrality” similar to that set forth by David Chambers in a companion article in this Symposium. The federal and state governments should encourage the procreative efforts of childless couples and remain neutral among couples making different choices. This neutrality implies a presumptive deference to voluntary private agreements and a reluctance to dictate their terms.