Document Type

Article

Publication Title

Buffalo Law Review

Publication Date

1990

Abstract

For reasons rooted in its own evolution, society in the West is, at present, ambivalent about the increasingly impressive solutions offered by reproductive technology to the growing prevalence of infertility. And this ambivalence is precisely reflected in law, which seeks both to protect and to discourage such technology in general, and its embodiment in particular, in surrogate motherhood.

The article begins by providing the historical and social context indispensable to an understanding of current family law, including the law of surrogacy. It then defines the ideological and existential status of this law: essentially its ambivalence regarding the competing claims of two opposing ideologies and the tension produced by that ambivalence. To illustrate the historical process, the ambivalence and the resolution of the ambivalence, this article focuses on the responses of society and the law to the solution offered by surrogacy to the problems of infertility. After examining the legal background to surrogacy law, this article provides a textual analysis of the judicial decisions and briefs in the Baby M case. Contrasting visions of the family presented in the Baby M opinions reflect uncertainty about the comparative importance of status and contract. That uncertainty and its implications are analyzed. Finally, the article suggests a legislative model for regulating surrogacy that mediates the conflict between status and contract by acknowledging the significance of each.

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