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72 Law & Contemp. Probs. 109 (2009)
Surrogacy and the Politics of Commodification

handle is hein.journals/lcp72 and id is 639 raw text is: SURROGACY AND THE POLITICS OF
COMMODIFICATION
ELIZABETH S. SCOTT*
I
INTRODUCTION
In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which
provides that a child conceived through in vitro fertilization (IVF) and born to a
surrogate mother automatically becomes the legal child of the intended parents
at birth if certain conditions are met. Under the Act, the woman who bears the
child has no parental status.' The bill generated modest media attention, but
little controversy;2 it passed unanimously in both houses of the legislature and
was signed into law by the governor.'
This mundane story of the legislative process in action stands in sharp
contrast to the political tale of surrogacy that unfolded in the 1980s and early
1990s as the Baby M case4 left its mark on American law. It was through the
lens of Baby M that this innovative use of reproductive technology was first
scrutinized as an issue of social, political, and legal interest.' Over the course of
the litigation between the intended parents, William and Elizabeth Stern, and
the surrogate mother, Mary Beth Whitehead, hostility toward commercial
surrogacy6 arrangements hardened. Opponents of surrogacy-mostly feminists
and religious groups-argued that the contracts were baby-selling arrangements
that exploited poor women who either were coerced or did not understand the
consequences of their decisions. Opponents argued that surrogacy degraded the
Copyright © 2009 by Elizabeth S. Scott.
This Article is also available at http://law.duke.edu/journals/lcp.
* Vice Dean and Harold R. Medina Professor of Law, Columbia University. Many thanks to
Kate Bartlett, Noa Ben-Asher, Judith Daar, Maxine Eichner, Yasmine Ergas, Marsha Garrison,
Suzanne Goldberg, Vicki Jackson, Kim Krawiec, Bob Scott, Jana Singer, Liz Schneider, and
participants at conferences at Cardozo Law School and George Washington University Law School for
helpful comments and to Sara Weinberg for outstanding research assistance.
1. 750 ILL. COMP. STAT. 47/1-75 (2006); see infra notes 90-96 and accompanying text.
2. See Judith Graham, State Sets Standards on Surrogacy Birth; Legislation Called Most Liberal in
U.S., CHI. TRIB., Jan. 2, 2005, at C1.
3. Id.
4. In the Matter of Baby M, 537 A.2d 1227 (N.J. 1988).
5. See infra notes 22-30 and accompanying text for a description of the Baby M trial and appeal.
6. In this article surrogacy refers to commercial surrogacy, in which a woman is paid to carry
and bear the product of her egg and donor sperm or an implanted, fertilized donor egg. Compare gift
surrogacy, in which a woman agrees to carry and bear another's child without payment.

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