Birth mothers usually have a moral right to parent their newborns in virtue of a mutual attachment formed, during gestation, between the gestational mother and the fetus. The attachment is formed, in part, thanks to the burdens of pregnancy, and it serves the interest of the newborn; the gestational mother, too, has a powerful interest in the protection of this attachment. Given its justification, the right to parent one's gestated baby cannot be transferred at will to other people who would (...) wish to function as social parents of the child in question. This indicates that surrogacy contracts are illegitimate, and therefore should be void. (shrink)

This thesis aims to determine whether international gestational surrogacy contracts are exploitative, and whether they should be prohibited. I chose a group of women working as surrogates at Kaival Maternity Home and Surgical Hospital, in Anand, Gujarat, India as a study group. After examining their life circumstances, I argue that these women live in unjust circumstances caused by institutional sexism and poverty. I critically assess arguments launched against surrogacy, organ trade, and prostitution and find that none of these (...) are sufficient for demonstrating that contracts involving the sale of the body are necessarily exploitative. I find that surrogacy is exploitative because of a complex set of social conditions. Further, the contracts are beneficial to both the woman acting as surrogate and to the couple hiring her. I conclude that international gestational surrogacy is exploitative yet mutually beneficial, and prohibiting surrogacy would be harmful unless accompanied by drastic social change. (shrink)

Recently, an agonizing twist intersecting predictive genetic tests and surrogacy contracts made news headlines in Canada. The intended parents, a couple from British Columbia, instructed the surrogate mother with whom they were working to undergo First Trimester Screening and Chorionic Villi Sampling, which revealed the fetus likely had Down syndrome. The parents directed the surrogate to terminate the fetus or they would abdicate their parental claim upon birth. This story raised numerous legal and ethical questions relating to the transferability (...) of decision making for prenatal screening, diagnostic tests, and the connected decision of termination when additional interested parties – the intended parents – are involved in the medical decision-making relationship. First, although the surrogate is the patient, what are the implications when the intended parents' wishes influence or even dictate the relationship between her and her obstetrician and genetic counselor? Second, if the intended parents' level of authority reaches explicit demands, may the intended parents ethically and legally require the surrogate to waive her right to informed consent for prenatal screening and diagnosis? (shrink)

Journal of Political Philosophy, EarlyView.

My project here is to argue for situating moral judgments about Indian surrogacy in the context of Reproductive Justice. I begin by crafting the best picture of Indian surrogacy available to me while marking some worries I have about discursive colonialism and epistemic honesty. Western feminists' responses to contract pregnancy fall loosely into two interrelated moments: post-Baby M discussions that focus on the morality of surrogacy work in Western contexts, and feminist biomedical ethnographies that focus on (...) the lived dimensions of reproductive technologies and how they are embodied and negotiated in specific cultural contexts. Both approaches have their shortcomings. Uncritically extending Western moral frameworks (for example, liberal feminist political values) to Indian surrogacy work raises the specter of discursive colonialism; with it, worries arise about how Western normative traditions can distort, erase, or misread non-Western subjects' lived experiences. Feminist biomedical ethnographic approaches correct this, but raise the specter of a weak moral absenteeism; with it, concerns arise about under-theorizing the structural harms and injustices shaping surrogacy worker's lives. I suggest that we might reduce these shortcomings by framing normative and ethnographic engagement with global surrogacy as questions of reproductive justice. (shrink)

The gestational surrogate – and her economic and educational vulnerability in particular – is the focus of many of the most persistent worries about paid surrogacy. Those who employ her, and those who broker and organize her services, usually have an advantage over her in resources and information. That asymmetry exposes her to the possibility of exploitation and abuse. Accordingly, some argue for banning paid surrogacy. Others defend legal permission on grounds of surrogate autonomy, but often retain concerns (...) about the surrogate. In response to the dilemma of a ban versus bald permission, we propose a 'soft law' approach: states should require several hours of education of surrogates – education aimed at informing and enhancing surrogate autonomy. (shrink)

The feminist movement remains fundamentally divided over the issue of surrogacy. Within the confines of this article it is argued that the inadequacy of positions on both sides of the debate rests upon their common tendency to deal with the ethical consequences of surrogacy for isolated agents, without sufficient concern for the broader social implications for all pregnant women in society. In order to clarify the issues involved, feminist theorists must consider the implications of surrogacy in a (...) broader social spectrum. Such an analysis will illustrate that the two-person dichotomous model of the maternal-foetal relationship proposed by the surrogacy arrangement has hugely prejudicial effects on the treatment received by non-contract mothers when they interact with agents of certain social institutions whose prior contact with surrogate mothers has made them more susceptible to conceiving the maternal-foetal relationship as fundamentally disconnected. In a climate of increased medical surveillance and intervention in the non-clinical context of pregnancy, the dangers of adopting this dichotomous model are palpable. Given the oppressive physical and psychological effect that this would have upon the liberty of the majority of pregnant women in society, this article argues that the feminist movement must abandon any promotion of the abstracted model of the mother-foetus relationship that is implicit in its arguments in favour of surrogacy. (shrink)

South African law currently forbids those seeking to arrange a surrogate motherhood agreement from creating a child that will not be genetically related to at least one of them. For a surrogacy contract to be legally valid, there must be a ‘genetic link’ between the child created through a surrogate and the parents who will raise it. Currently, this law is being challenged in the High Court of South Africa, and in this article I critically explore salient ethical (...) facets of the dispute. I argue that the law is unjust and should be revised. (shrink)

Access to surrogacy is often cast in the language of rights. Here, I examine what form such a right could take. I distinguish between surrogacy as a right to assisted procreation, and surrogacy as a contractual right. I find the first interpretation implausible: it would give rise to claims against the state that no state can fulfil, namely the provision of sufficient surrogates to satisfy the need. Instead, I argue that the right to surrogacy can only (...) be plausibly understood as a contractual right. I then investigate two different sets of harms that are often employed to argue against such a contractual interpretation of the right to surrogacy: harm to women's interests in a gendered society, and harm to the sense of self of the surrogate. I assess both of these through the analytical lens of vulnerability. I find neither of them to be convincing arguments against surrogacy contracts. In conclusion, I agree that surrogacy contracts should be carefully regulated, but I disagree with those who call for prohibition of the right to surrogacy as a contractual right. (shrink)

In July of 2005, Indianapolis witnessed streaming headlines in the local newspaper attempting to distill the confusion surrounding the adoption of two premature infants by an adoptive parent. Thirteen articles and opinion pieces introduced the public to a murky legal and ethical transaction. Stating his overwhelming desire to have children, a New Jersey schoolteacher hired the services of a local attorney. The attorney procured a South Carolina woman for a compensated gestational surrogacy contract. Under the contract, the (...) surrogate and the attorney would meet in Indiana to complete the execution of the contract and transfer parental rights via adoption after the birth of the twins. (shrink)

The socio-ethical concerns regarding exploitation in commercial surrogacy are premised on asymmetric vulnerability and the commercialization of women’s reproductive capacity to suit individualistic motives. In examining the exploitation argument, this article reviews the social contract theory that describes an individual as an ‘economic man’ with moral and/or political motivations to satisfy individual desires. This study considers the critique by feminists, who argue that patriarchal and medical control prevails in the surrogacy contracts. It also explores the exploitative dynamics (...) amongst actors in the light of Baier’s conceptualization of trust and human relationship, within which both justice and exploitation thrive, and Foucault’s concept of bio-power. Drawing on these concepts, this paper aims to investigate the manifestations of exploitation in commercial surrogacy in the context of trust, power and experiences of actors, using a case study of one clinic in India. The actors’ experiences are evaluated at different stages of the surrogacy process: recruitment, medical procedures, living in the surrogate home, bonding with the child and amongst actors, financial dealings, relinquishment and post-relinquishment. (shrink)

In this article, I argue that the liberal framework-its autonomous individuals with equal rights-allows judges to justify enforcing surrogacy contracts. More importantly, even where judges do not enforce surrogacy contracts, the liberal framework conceals gender and class issues which insure that the surrogate will lose custody of her child. I suggest that Marx's analysis of estranged labor can reveal the class and gender issues which the liberal framework conceals.

This essay will focus on the moral issues relating to surrogacy in the global context, and will critique the liberal arguments that have been offered in support of it. Liberal arguments hold sway concerning reproductive arrangements made between commissioning couples from wealthy nations and the surrogates from socioeconomically weak backgrounds that they hire to do their reproductive labor. My argument in this paper is motivated by a concern for controlling harms by putting the practice of globalized commercial surrogacy (...) into the context of care ethics. As I will argue, the unstable situations into which children of global surrogacy arrangements are born is symbolic of the crisis of care that the practice raises. Using the Baby Manji case as my touch point, I will suggest that liberalism cannot address the harms experienced by Manji and children like her who are created through the global practice of assisted reproductive technology. I will argue that, if commissioning couples consider their proposed surrogacy contracts from a care ethics point of view, they will begin to think relationally about their actions, considering the practice from an ethical lens, not just an economic or contractual one. (shrink)

This paper aims to evoke an alternative viewpoint on surrogacy, moving beyond popular Western feminist beliefs on the practice, by introducing the history and current context of East Asian surrogacy. To elaborate a different cultural perspective on surrogacy, this paper first introduces the East Asian history of contract pregnancy systems, prior to the emergence of the American invention of ‘modern’ surrogacy practice. Then, it examines Japanese mass media portrayals of cross‐border surrogacy in which white (...) women have become ‘convenient’ entities. The results of the analysis show how Japanese culture has adopted a rhetoric about the use of white women as convenient surrogate mothers in the global commercial surrogacy market. An essential aspect of surrogacy is the premise that a woman’s reproductive function should be accessible to others. Past discussions among feminists have neglected this important point. Moreover, they share the assumption that white surrogacy clients are exploiters, who take advantage of women of colour as surrogate mothers. The current situation in Asia flips this perspective—with white women regarded as easier targets for exploitation by wealthy people of colour. For Asian clients, Westerners can be easily regarded as ‘others’ whom they can use for their reproductive needs. In today's globalized era, the surrogacy industry is no longer for affluent Westerners only. Considering this change, it is crucial to discuss surrogacy issues by reconstructing feminist perspectives with a globalized view, to help protect women’s bodies, regardless of nationality, ethnicity, skin colour, or religion. (shrink)

It has become common to distinguish between altruistic and commercial contract motherhood (or ‘surrogacy’). Altruistic arrangements are based on the ‘gift relationship’: a woman is motivated by altruism to have a baby for an infertile couple, who are free to reciprocate as they see fit. By contrast, in commercial arrangements both parties are motivated by personal gain to enter a legally enforceable agreement, which stipulates that the contract mother or ‘surrogate’ is to bear a child for the (...) intending parents in exchange for a fee. She is required to undergo medical examinations and to refrain from behaviour that could harm the foetus. The intending parents are the child's legal parents from the outset. The parties to the contract can, but are not expected to, maintain contact after the transaction is completed. We argue that contract motherhood should not be organized according to the norms of the gift relationship, and that contract mothers should be compensated for their labour. However, we accept that there are good reasons for rejecting the commercial model as a suitable framework for contract pregnancy, and argue, instead, in favour of viewing it as a profession. (shrink)

Access to surrogacy is often cast in the language of rights. Here, I examine what form such a right could take. I distinguish between surrogacy as a right to assisted procreation, and surrogacy as a contractual right. I find the first interpretation implausible: it would give rise to claims against the state that no state can fulfil, namely the provision of sufficient surrogates to satisfy the need. Instead, I argue that the right to surrogacy can only (...) be plausibly understood as a contractual right. I then investigate two different sets of harms that are often employed to argue against such a contractual interpretation of the right to surrogacy: harm to women's interests in a gendered society, and harm to the sense of self of the surrogate. I assess both of these through the analytical lens of vulnerability. I find neither of them to be convincing arguments against surrogacy contracts. In conclusion, I agree that surrogacy contracts should be carefully regulated, but I disagree with those who call for prohibition of the right to surrogacy as a contractual right. (shrink)

In the United States at this time, no uniform federal law exists regarding commercial surrogacy, and state statutory schemes vary vastly, ranging from criminalization to legal recognition with contract enforcement. The authors examine how commercial surrogacy agencies utilize the Internet as a means for attracting parents and surrogates by employing emotional cultural rhetoric. By inducing both parents and surrogates to their jurisdiction, agencies circumvent vast discrepancies in state statutory regulative schemes and create a distinct interstate business, absent (...) an efficient regulatory framework or legal recourse in some circumstances. The authors propose a uniform federal regulatory scheme premised upon regulating interstate business transactions to create accountability and legal remedies for both the parents and the surrogate. (shrink)

This article addresses the issue and practice of surrogacy in France. Surrogacy contracts are void under French law, and intermediaries, medical personnel, and in some cases, parents can be penaliz...

This paper provides an analysis of the complex global reproduction networks driving the rapidly expanding cross-border surrogacy industry in Asia’s reproductive bioeconomy. It sheds light on the unique features of informal surrogacy networks, notable for their flexible business ties and non-standardized surrogate mother recruitment. These factors contribute to heightened vulnerability for surrogate mothers operating within these networks. While previous literature has underscored the merits of labor law in regulating the surrogacy industry, its application in informal cross-border (...) class='Hi'>surrogacy remains under-examined. To address this gap, this research delves into innovative labor law strategies with potential to better regulate the surrogacy sector. Drawing inspiration from progressive labor regulations and supply chain strategies in Bulgaria and Australia, the proposed model aims to redefine the traditional employment relationship. This shift is aimed at bolstering protection for surrogate mothers and enforcing accountability throughout the surrogacy business network. The model further advocates for a collective framework that fosters collaboration and mandates the documentation and registration of surrogacy contracts. Moreover, it underscores the critical significance of international collaboration in bridging regulatory gaps and distributing accountability across consumer and supply states. (shrink)

The article examines the ethics and politics of international gestational surrogacy contracts through a three-dimensional framework that combines political accounts of framework precariousness, accounts of norm incompatibility in contracting scenarios, and feminist accounts of domination. This framework, which can be applied to a host of contemporary bioethical controversies, articulates the ways in which individuals' medical experiences are shaped and determined by social structures that lie beyond their field of control, thus pushing feminist bioethics toward closer collaboration with legal and (...) political theory. (shrink)

The Hague Conference on Private International Law currently has a Parentage/Surrogacy Project, which evaluates the legal status of children in cross-border situations, including situations involving international contract pregnancy. Should a convention focusing on international contract pregnancy emerge from this project, it will need to be consistent with the Hague convention on Intercountry Adoption. The latter convention prohibits adoptions unless, among other things, ‘the competent authorities of the receiving State have determined that the prospective adoptive parents are eligible (...) and suited to adopt’. Included in it, therefore, is a parental vetting or licensing requirement. In our view, a similar requirement must also appear in any Hague Convention on international contract pregnancy if the two conventions are to be ethically consistent with one another. In particular, there should be a licensing requirement in such a convention for at least some of the prospective parents in contract pregnancy arrangements. We consider several arguments against this conclusion, and argue that none of them is successful. (shrink)

This article examines the construction of parenthood, drawing on Brazilian cisgender, heterosexual, and homosexual couples' experiences in using assisted reproduction technologies (ART), particularly the surrogacy. For that purpose, we interviewed: 1) a lesbian woman who had her daughter through her partner's pregnancy, using ART with anonymous donor semen; 2) a gay man who, together with his partner, used a surrogacy service under contract via a specialised offshore agency; 3) a woman who was a surrogate, in Brazil, for (...) her sister-in-law and brother who lived abroad and, from abroad, sent an embryo fertilised for surrogacy; 4) a woman who resorted to her sister-in-law in order to be a mother by surrogacy, with ovules from the woman herself fertilised with semen from her husband; and 5) the sister-in-law mentioned in 4), who acted as surrogate for her brother and his wife. These interviews made it possible to think about the discursive construction of the legitimacy of such parenthoods, as it is produced by access to, and manipulation and circulation of, reproductive technologies and persons. This biomedical management of bodies sets up a material and discursive circuit that, in turn, produces a complex web of personal, normative, legal, professional and market relationships, particularly with a view to construction of a parenthood anchored in a notion of biologically-constituted origin. In this respect, biological, affective and social bonds merge to produce a precise placement of who is the father and/or who is the mother, as well as who are the important others and how they are linked to the child in a broader web of parenthood. (shrink)

Inequalities, ineffective governance, unclear surrogacy regulations and unethical practices make India an ideal environment for global injustice in the process of commercial surrogacy. This article aims to apply the ‘capabilities approach’ to find possibilities of global justice through human fellowship in the context of commercial surrogacy. I draw primarily on my research findings supplemented by other relevant empirical research and documentary films on surrogacy. The paper reveals inequalities and inadequate basic entitlements among surrogate mothers as a (...) consequence of which they are engaged in unjust contracts. Their limited entitlements also limit their opportunities to engage in enriching goals. It is the role of the state to provide all its citizens with basic entitlements and protect their basic human rights. Individuals in India evading their basic duty also contribute to the existing inequalities. Individual responsibilities of the medical practitioners and the intended parents are in question here as they are more inclined towards self-interest rather than commitment towards human fellowship. At the global level, the injustice in transnational commercial surrogacy practices in developing countries calls for an international declaration of women and child rights in third party reproduction with a normative vision of mutual fellowship and human dignity. (shrink)

Although increasing in usage, surrogacy remains the most controversial method of assisted reproductive technology. Many Christian ethicists have either objected tout court or expressed strong reservations about the practice. Behind much of this caution, however, lies essentialist assumptions about pregnant women or an overemphasis on the statistical minority of well-publicized disasters. The question remains whether Christian ethical reflection on surrogacy might change if informed by social scientific studies on the surrogacy triad. I offer a feminist Christian framework (...) for surrogacy comprised of seven principles drawn from this literature, the reproductive justice paradigm, human rights, and Reformed theo-ethical norms. I ultimately advance surrogacy under certain conditions as a moral good and focus on “altruistic” arrangements—including my own—without concluding that only non-commercial contracts could pass ethical muster. (shrink)

Introduction -- "Every Legitimate Government is Republican": Rousseau's Debt to and Departure from Montesquieu on Republicanism -- What if There is no Legislator? Rousseau's History of the Government of Geneva -- Rousseau's Republican Citizenship: The Moral Psychology of The Social Contract -- Rousseau's negative liberty: Themes of domination and skepticism in The Social Contract -- Rousseau's Ancient Ends of Legislation: Liberty, Equality (& Fraternity) -- Property and Possession in Rousseau's Social Contract -- Political Equality Among Unequals -- (...) On the Primacy of Peoplehood: Nations and Nationalism in Rousseau's Social Contract -- Rousseau on Voting and Electoral Laws -- Rousseau and the puzzle of the Roman Republic -- Rousseau's Case against Democracy -- Rousseau's Dilemma or "Of Civil Religion" -- Entreating the Political: Politics and Theology in Rousseau's Social Contract -- Civil Religion and Political Unity: Social Contract 4.8. (shrink)

To study Judicial determinants of the ordered obstetrical and fertility interventions. Nature, corresponding laws, decisions upon the 37 expounded holdings at the Probate, Trial, District, Appellate, and Supreme Courts are studied in 92 published materials identified through the ACOG, RCOG, SOCG portals, and Legal Scholarship Repository. Hearings are held in the US (83.8 %), Canada (10.8 %) and U.K (5.4 %). Of all the hearings reviewed, 27 % concern mentally impaired, 37.8 %-maternal incompetence, and 21.6 % cases are of criminal (...) nature. The Judicial determinants vary from country to country. In Canada, the ordered medical interventions are effected by the child protection legislation, whereas in the US, by court orders. In majority of cases, orders are obtained by dismissing the patriae petitions for involuntary sterilizations of mentally impaired sui juris adults (57 %); coerced obstetrical interventions (33.3 %), fetal custody (50 %); enforcement of surrogacy contracts (62.5 %) in favor of the Common Humanity Benefit clause; and recognizing the rights to inherit in posthumously conceived children (80 %) pursuant to the Social Security Act, Law of obviousness, Law of inherent anticipation, and Intestacy statute. Current study prioritizes two questions: (1) whether it is justified to override the wishes of a competent patient purportedly in her best interests; and (2) whether the patient’s autonomy and competence is an absolute concept. With the law unsettled as to a woman’s right to assent a treatment and contradict her fetus, parties concerned with fetal rights should consider exercising of screening tools on maternal judgmental fitness jointly developed by medical and legal practitioners. Further, given the advances in gamete conservations, states consider enacting legislation in order to safeguard the orderly administration of estates disrupted by claims from posthumously conceived children. A balance must be struck between the child’s right to inherit, the state’s interest, as well as the interests of prior born children. (shrink)

Adopting a critical thinking methodology in which critical thinking tools are introduced and applied to medical ethics reading, this book explains the dialogue which is formed by the readings in each chapter and clarifies how the various thinkers are responding to one another in a common discussion. The books' unified approach offers a critical thinking pedagogy, which philosophically and logically pulls the many readings and philosophies together. The book examines an introduction to moral theory and critical thinking tools, while readings (...) address the following issues: surrogacy contracts; abortion; ethical issues at the end of life; genetics and morality; ethics and HIV/AIDS; the relationship between medical professionals and patients; research on human and non-human subjects; allocation of medical resources and justice issues in health care systems. For individuals interested in medical ethics and philosophy. (shrink)

In this paper we examine the questions “What does it mean to be a surrogate mother?” and “What would be an appropriate perspective for a surrogate mother to have on her pregnancy?” In response to the objection that such contracts are alienating or dehumanising since they require women to suppress their evolving perspective on their pregnancies, liberal supporters of surrogate motherhood argue that the freedom to contract includes the freedom to enter a contract to bear a child for (...) an infertile couple. After entering the contract the surrogate may not be free to interpret her pregnancy as that of a non-surrogate mother, but there is more than one appropriate way of interpreting one's pregnancy. To restrict or ban surrogacy contracts would be to prohibit women from making other particular interpretations of their pregnancies they may wish to make, requiring them to live up to a culturally constituted image of ideal motherhood. We examine three interpretations of a “surrogate pregnancy” that are implicit in the views and arguments put forward by ethicists, surrogacy agencies, and surrogate mothers themselves. We hope to show that our concern in this regard goes beyond the view that surrogacy contracts deny or suppress the natural, instinctive or conventional interpretation of pregnancy. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Landmark Legal Cases in BioethicsSusan Cartier Poland (bio)Only a few decades old, the interdisciplinary field of bioethics has developed surrounded by centuries of legal tradition and moral philosophy. Bioethics and the law have weaved back and forth over time influencing each field. Sometimes ethics leads the debate on problematical issues; for example, the Recombinant DNA Advisory Committee at the National Institutes of Health established regulations prior to initiating human (...) gene therapy. At other times, law takes over; Roe v. Wade, for example, has polarized and closed public discussion on abortion. Most frequently, however, scientific developments initiate discussion in both fields, as when the announcement of the birth of Dolly—the first cloned mammal—sparked President Clinton to ask the National Bioethics Advisory Commission for a report on cloning.A back-and-forth pattern also exists within the law itself, this time between legislator and judge. Legislators enact statutes, which apply universally to regulate conduct in society. Judges, on the other hand, interpret statutes and apply them to particular cases to resolve disputes between parties. Case law, as judge-made law is called, that grows in the absence of legislation becomes the common law. Legislatures can change the course of common law development by enacting more law, usually as amendments, but sometimes as repeals. A judge who sees the facts of a case or the law differently may also change the common law. And so the counterpoint between legislator and judge goes.A legal case becomes a landmark in bioethics because of its historical or precedential value to the field. Historical cases reflect judicial reasoning or rationalization that lays the conceptual foundation for a bioethical principle. Perhaps the best known example of this is the focus on the right to self-determination in Schloendorff that led to the development of informed consent. The principle of autonomy in bioethics derives its legal impetus from this line of cases.A case that acquires landmark status because of its precedential value does so for one of two reasons based on legal precedents. First, the case may be one of “first impression.” In the legal sense, that means that the particular case with its [End Page 191] facts or issues is the first one that a particular court has confronted within that court’s jurisdiction or area of decision-making authority. To be a landmark in bioethics, however, the ordinary sense of “first impression” applies. The first time that a particular bioethical topic has appeared in court for legal resolution makes a case one of “first impression” for bioethics. The case of Baby M on surrogacy contracts illustrates this.The second way in which a case can achieve landmark status based on precedents involves legal precedent and the jurisdictional basis of the court system. Under the common law system, a preceding case that involves the same or similar facts or issues as a current case must be followed by lower—i.e., less authoritative—courts in the same jurisdiction. That judicial rule of decision making is called stare decisis. It creates an institution of continuity, yet allows for change due to differences in judicial interpretation of facts and issues, which is called distinguishing the case.All courts under United States jurisdiction must follow the U.S. Supreme Court. By its sheer power of authority, the Court issues opinions that, if they concern bioethical topics, make cases landmarks in bioethics. For example, Roe v. Wade made abortion legal and set off the debate between maternal and fetal rights. Casey later refined, or to some redefined with a discussion of stare decisis, the bioethical underpinnings of Roe by framing the debate as one between maternal rights and state interests.In law, precedents concern only appellate cases. Trial courts, like that in McFall v. Shimp, handle questions of both fact and law. Appellate courts, like that in Brotherton, hear appeals from the lower trial courts and address legal issues only. Trial judges apply the law to facts, and appellate judges reason about the trial judge’s legal interpretation.Appellate court decisions are the ones most frequently published, either in print or electronically online, for citation. Consequently they are the easiest to locate and retrieve. “Reporters” as... (shrink)

This essay is a reply to Martha Nussbaum's “Capabilities and Disabilities.” It endorses Nussbaum's critique of the social‐contract tradition and proposes that it might be productively contrasted with Michael Walzer's critique of John Rawls in Spheres of Justice. It notes that Nussbaum's emphasis on surrogacy and guardianship with regard to people with severe and profound cognitive disabilities poses a challenge to disability studies, insofar as the field tends to emphasize the self‐representation of people with disabilities and to concentrate (...) primarily on the aesthetic and political representation of physical disability. The essay concludes with an account of a recent exchange with Peter Singer on the question of our social expectations of people with Down syndrome. (shrink)

It is now medically possible for a baby to have two biological mothers. A fertilized ovum from one woman can be implanted into a second woman for gestation in her uterus. In fact, there have been several such cases. The ova donor is the mother in the genetic sense: her genetic material,along with that of the sperm donor,appears in the developing baby. The uterine hostess is the birth mother: she gestates the fetus and gives birth to it. In essence, the (...) two female reproductive functions, genetic and gestational, can be and have been divided from each other. Our current conception of biological maternity has lagged behind these technological marvels and still assumes that both functions will be performed by the same woman. At a time when two "biological mothers" can and do make claims for the same child,each on the ground that she is the "true mother", it is crucial to examine our concepts of biological maternity and their relation to our social policies about maternity in these cases. In this paper I will argue that the best social and legal policy would involve a prima facie preference for the claims of the gestational mother over the claims of the genetic mother for custody of the child in a contest (if there is no question of parental unfitness on either side). That is, in any dispute, presumption should be in favor of the gestational mother. This argument is made independent of considerations about pre-birth and pre-conception contracts, because the issues raised about the roles of gestational and genetic maternity are substantial in themselves and have obvious implications about the acceptability of such contracts.Rather, I argue that a revision of our concept of biological maternity which emphasizes the importance of gestation and which would prefer the claims of the gestational over the genetic mother would have positive benefits for both women and newborns. (shrink)

The exploitation of human by human is a globally pervasive phenomenon. Slavery, serfdom, and the patriarchy are part of its lineage. Guest and sex workers, commercial surrogacy, precarious labour contracts, sweatshops, and markets in blood, vaccines or human organs, are some contemporary manifestations of exploitation. What makes these exploitative transactions unjust? And is capitalism inherently exploitative? This book offers answers to these two questions. In response to the first question, it argues that exploitation is a form of domination, self-enrichment (...) through the domination of others. On the domination view, exploitation complaints are not, fundamentally, about harm, coercion or unfairness. Rather, they are about who serves whom and why. Exploitation, in a word, is a dividend of servitude: the dividend the powerful extract from the servitude of the vulnerable. In response to the second question, the book argues that this servitude is inherent to capitalist relations between consenting adults; capital just is monetary title to control over the labour capacity of others. It follows that capitalism, the mode of production where capital predominates, is an inherently unjust social structure. (shrink)

_ Source: _Page Count 18 There are two ways to transfer a bodily right. One might transfer a bodily right in a detaching way – that is, without transferring jurisdiction over one’s future bodily choices. Alternately, one might transfer a bodily right in an attaching way – that is, in a way that transfers such jurisdiction. For instance, A might sell his kidney to B for money paid at the time of the transplant. Alternately, A might accept money now, agreeing (...) to give up his kidney some time down the road. In the latter case and not the former, B acquires normative jurisdiction over A’s future bodily choices. In this paper I will argue that the distinction between attaching and detaching transfers of bodily rights has implications regarding whether certain contracts and agreements should be legally enforced – and whether problems arise when the moral and legal transferability of these rights comes apart. (shrink)

_ Source: _Page Count 18 There are two ways to transfer a bodily right. One might transfer a bodily right in a detaching way – that is, without transferring jurisdiction over one’s future bodily choices. Alternately, one might transfer a bodily right in an attaching way – that is, in a way that transfers such jurisdiction. For instance, A might sell his kidney to B for money paid at the time of the transplant. Alternately, A might accept money now, agreeing (...) to give up his kidney some time down the road. In the latter case and not the former, B acquires normative jurisdiction over A’s future bodily choices. In this paper I will argue that the distinction between attaching and detaching transfers of bodily rights has implications regarding whether certain contracts and agreements should be legally enforced – and whether problems arise when the moral and legal transferability of these rights comes apart. (shrink)

Concerns about exploitation pervade the literature on commercial cross-border reproductive care, particularly egg selling and surrogacy. But what constitutes exploitation, and what moral weight does it have? I consider the relationship between vulnerability, limited choice, consent, and mutually advantageous exploitation. To elucidate the difference between limited choice and consent, I draw on an account of relational autonomy. In the absence of a normative principle of fair distribution, it is unclear whether the providers of reproductive goods and services are treated (...) fairly in such contracts, and therefore whether they have been exploited. I finish with some pragmatic recommendations for minimizing risks and empowering egg sellers and surrogates. (shrink)

The technological control of female bodies and the bio-political control of artificial reproduction have become central issues within feminist philosophical thinking, becoming an obligatory point of reference toward deepening the conceptual, political, social and symbolic connection between women's bodies and assisted reproductive technologies (ARTs). In this essay, my attention will be focused primarily on eco-feminist theses that firmly oppose the diffusion of assisted reproductive technologies and the legitimization of «pregnancy contracts». According to the «resistance eco-feminists», (those against ARTs), the process (...) of assisted reproduction does not expand procreative rights, does not free women from infertility, nor does it enable them to truly experience of motherhood. Behind the therapeutic paradigm within which reproductive technologies justify themselves, there hides a bio-power that has refined the tools necessary in order to wrest control of the reproductive experience from women. The colonization of women thusly proceeds along with the colonization of nature and life. The selection of fertile elements involves the biological-genetic and social dissection of living organisms, be they plants or animals: the woman, sectioned and fragmented, becomes a composite human being, a «dividual» being rather than an individual. (shrink)

Commodification is a broad and crosscutting issue that spans debates in ethics (from prostitution to global market practices) and bioethics (from the sale of body parts to genetic enhancement). There has been disagreement, however, over what constitutes commodification, whether it is happening, and whether it is of ethical import. This chapter focuses on one area of the discussion in bioethics – the commodification of human tissue – and addresses these questions – about the characteristics of commodification, its pervasiveness, and ethical (...) significance – in order to clarify and map the commodificatory debate. The chapter does this in three parts. First, it defines commodification as the shift from “persons” to “things” and from “relationships” to services for “contract.” Second, using examples of kidney and gamete sale and commercial surrogacy, it argues that commodification is rife in bioethics. Third, it contends that commodification is an ethical problem for three key reasons: First, because it leads to exploitation; second, because some things should not be for sale; and third, because it damages social goods. The chapter concludes that commodification and commodificatory practices should be resisted. (shrink)

Reproductive techniques and practices, ranging from ordinary birth-control measures and artificial insemination to embryo transfer and surrogate motherhood, have greatly enhanced our range of reproductive choices. As a consequence, they pose a number of difficult moral and legal questions with regard to the formation of a family and our conception of parenthood. A view that is becoming increasingly common is that parental rights and responsibilities should not be based on genetic relationships but should instead be seen as arising from agreements (...) or contracts between individuals. Accordingly, a man who consents to his wife's artificial insemination by donor (AID) and not the sperm donor, is the legal father of the child; in surrogacy agreements, the intending mother, and not the surrogate, has the right to raise the resulting child. While agreeing that biology should not form the basis for assigning legal parenthood, I argue that the theory of intentional parenthood, despite being put forward as a liberal theory, is geared toward or will have the function of protecting the nuclear family and inhibiting the formation of alternative family forms. (shrink)

Reproductive techniques and practices, ranging from ordinary birth-control measures and artificial insemination to embryo transfer and surrogate motherhood, have greatly enhanced our range of reproductive choices. As a consequence, they pose a number of difficult moral and legal questions with regard to the formation of a family and our conception of parenthood. A view that is becoming increasingly common is that parental rights and responsibilities should not be based on genetic relationships but should instead be seen as arising from agreements (...) or contracts between individuals. Accordingly, a man who consents to his wife's artificial insemination by donor (AID) and not the sperm donor, is the legal father of the child; in surrogacy agreements, the “intending mother,” and not the surrogate, has the right to raise the resulting child. While agreeing that biology should not form the basis for assigning legal parenthood, I argue that the theory of intentional parenthood, despite being put forward as a liberal theory, is geared toward or will have the function of protecting the nuclear family and inhibiting the formation of alternative family forms. (shrink)

Studies on surrogate motherhood have mostly explored paid arrangements through the lens of a contract model, as clinical work or as a maternal identity-building project. Turning to the under-examined case of unpaid, so-called altruistic surrogate motherhood and based on an analysis of interviews with women who had been unpaid surrogate mothers in a full gestational surrogacy with a friend or relative in Canada, the United States or Australia, this article explores altruistic surrogate motherhood as relational work. It argues (...) that this form of surrogate motherhood within close interpersonal relations can be conceptualised through the relational work involved in hosting a child for the intended parents. The article explores how relational work in this context implies an embodied, asymmetrical and far-reaching sense of responsibility that surrogate mothers describe as characteristic of their surrogacy experience. In this way, the article sheds light on feminist concerns about surrogacy as an embodied and objectifying work of women while at the same time illuminating how surrogate mothers respond to the intended parents in light of their pre-surrogacy relationship, how meanings are negotiated by them and how relationships are managed during the pregnancy. (shrink)

In this paper, I discuss exploitative transactions in bioethics. Examples of this kind of transactions allegedly include, among others, commercial surrogacy, organ selling, and research with human subjects in developing countries. The most problematic kind of exploitation is what Allan Wertheimer calls “mutually advantageous exploitation:” the weak party’s consent for the transaction is an effective and rational consent. Moreover, W does not suffer any harm by the transaction; on the contrary, the transaction benefits W. My aim in this paper (...) is twofold. From the perspective of individual ethics, I offer a model to understand the nature of the wrongfulness of the strong party’s action. And from the perspective of legal ethics, I suggest some reasons to believe that the prohibition of beneficial exploitative contracts is problematic and can only be justified in very exceptional cases. (shrink)

The law ordinarily recognises the woman who gives birth as the mother of a child, but in certain jurisdictions, it will recognise the commissioning couple as the legal parents of a child born to a commercial surrogate. Some commissioning parents have, however, effectively abandoned the children they commission, and in such cases, commercial surrogates may find themselves facing unexpected maternal responsibility for children they had fully intended to give up. Any assumption that commercial surrogates ought to assume maternal responsibility for (...) abandoned children runs contrary to the moral suppositions that typically govern contract surrogacy, in particular, assumptions that gestational carriers are not ‘mothers’ in any morally significant sense. In general, commercial gestational surrogates are almost entirely conceptualised as ‘vessels’. In a moral sense, it is deeply inconsistent to expect commercial surrogates to assume maternal responsibility simply because commissioning parents abandon children for one reason or another. We identify several instances of child abandonment and discuss their implications with regard to the moral conceptualisation of commercial gestational surrogates. We conclude that if gestational surrogates are to remain conceptualised as mere vessels, they should not be expected to assume responsibility for children abandoned by commissioning parents, not even the limited responsibility of giving them up for adoption or surrendering them to the state. (shrink)

This chapter contains sections titled: General Assessments of Assisted Reproduction Pre‐birth Testing Conclusion References Further reading.

It is argued by Anderson and also in the BrazierReport that Commercial Surrogate Motherhood (C.S.M.)contracts and agencies should be illegal on thegrounds that C.S.M. involves the commodification ofboth mothers and babies. This paper takes issue withthis view and argues that C.S.M. is not inconsistentwith the proper respect for, and treatment of,children and women. A case for the legalisation ofC.S.M. is made.