Surrogacy: Sorting through the Alternatives

The Baby M. case1 brought the issue of surrogacy to the forefront of public attention. Although Baby M. itself has been settled, legislatures throughout the United States are still formulating policies regarding surrogacy agreements, which are viewed as one "remedy" for the problem of infertility. Reacting to legislative responses is somewhat different than choosing a side in the Baby M. case. Therefore, when looking at legislative solutions, it is essential to identify the problem to be addressed. It is also important to consider all of the possible consequences of the policies proposed. And, to some extent at least, it is necessary to be alert to possible drafting problems. In this Article, I attempt to sift through the different types of proposals advanced in the wake of Baby M. from a feminist perspective which emphasizes both gender equality and reproductive choice. This Article has three parts. First, it speaks generally about the need to address the pain of infertility in effective ways. Second, it considers two generic legislative approaches to the surrogacy phenomenon. Finally, it explains my reasons for advocating a middle ground, despite certain problems which that stance presents.