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Harvard Women's Law Journal

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Despite the exhaustive coverage of the Baby M case, there has been relatively little discussion of the difficult constitutional questions posed by that case. Judge Harvey Sorkow, the trial court judge, held that the surrogacy contract was constitutionally protected as an exercise of the parties' "procreation" rights. His constitutional analysis of the Baby M case failed, however, because Sorkow mistakenly assumed that surrogacy is a single event, rather than a relationship which changes over time.

The procreation right which the trial court identified is not broad enough to encompass all aspects of the multi-faceted surrogacy relationship. Moreover, the trial court never reached the critical question of the alienability of the several different rights actually involved here. This article suggests an alternative approach to the crucial constitutional questions raised in Baby M, an approach which addresses the issue of alienability in the surrogacy context.

Although the surrogacy agreement in Baby M raises novel legal issues, no dearth of constitutional interpretation exists with respect to the components of the surrogacy agreement, such as its provisions regarding abortion and termination of parental rights. The basic underlying issues here have similarly been addressed by the courts in cases involving contracts, procreation, and adoption. While the surrogacy relationship in its entirety may be qualitatively different from the sum of its parts, a full understanding of the precedents addressing artificial insemination, pregnancy and abortion, and determination of parental rights is essential in developing a constitutional analysis.

The article will be in two parts. The first section will discuss the problems raised, and the questions left open, by Judge Sorkow's inchoate formulation of the parties' “procreation" rights. The second section suggests an alternative formulation in which the particular privacy rights involved in the surrogacy process are identified as the decisional right with respect to one's own reproductive capacity and the right to bodily integrity. Moreover, it is argued that the development of the parents' liberty interest in their child must be taken into account. Using the revised formulation, the second section presents an analysis of the parties' rights at each discrete stage of the complex surrogacy relationship: (1) the agreement, (2) insemination and conception, (3) pregnancy and abortion, and (4) determination of parental rights.



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