90 Ind. L.J. Supp. 1 (2014-2015)

handle is hein.journals/spplmntinlj6 and id is 1 raw text is: 








                       Legislating Labors of Love:
         Revisiting Commercial Surrogacy in New York

                              DEBORAH MACHALOW*

   In 1978, Louise Brown, the first baby conceived through in vitro fertilization
(IVF),1 changed the world. Doctors first considered fertilization outside a woman's
body in 1934,2 and it has since become a medical mainstay.3 Since 1978, around
five million children worldwide have been born through assisted reproductive
technology (ART).4 In IVF, eggs are retrieved from     a woman's ovaries and
fertilized in a lab. The resulting embryos are transferred into the uterus of either the
woman who produced the eggs or of another woman. This procedure has had
drastic implications on the law of surrogacy contracts.6
   Surrogacy provides a pathway to genetic parenthood for people who cannot
achieve a successful pregnancy on their own. A surrogate

      is a woman who, for financial and/or compassionate reasons, agrees to
      bear a child for another woman who is incapable or, less often,
      unwilling to do so herself ... she is a substitute or tentative mother in
      that she conceives, gestates and delivers a baby on behalf of another
      woman who is subsequently seen as the real mother of the child.

Intended parents, the surrogate, and sometimes the surrogate's husband enter a
contract that dictates the parameters of the surrogacy.9 Typical intended parents are



     * J.D. Candidate, 2015, Indiana University Maurer School of Law. B.A. 2012, Stony
Brook University. A million thanks to those who made the publication of this Note
possible-family, friends, mentors, and ILJ colleagues.
    1. SUSAN L. CROCKIN & HOWARD W. JONES, JR., LEGAL CONCEPTIONS: THE EVOLVING
LAW AND POLICY OF ASSISTED REPRODUCTIVE TECHNOLOGIS 1 (2010).
    2. Timehne: The History of In Vitro Fertilization, PBS, http://www.pbs.org/wgbh/
americanexperience/features/timeline/babies.
    3. Id
    4. Eliana Dockterman, Reproductive Medicine's Gift: 5 Million Babies, TIME (Oct. 16,
2013), http://healthliand.time.com/201 3/10/16/reproductive-medicines-gift-5-million-babies/.
In fact, 2.5 million of these babies have been born in the past six years alone. Id.
    5. See Austin Caster, Don't Split the Baby: How the U.S. Could Avoid Uncertainty and
Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law
Regime, 10 CONN. PUB. INT. L.J. 477, 481 (2011).
    6. While surrogacy   raises  complex  concerns, such   as commercialization,
commodification, and the right to procreate (to name a few), these issues have been
thoroughly examined elsewhere. Devising overarching conclusions about surrogacy's
societal impact is outside the purview of this Note.
    7. Richard J. Arneson, Commodification and Commercial Surrogacy, 21 PHI. & PUB.
AFF. 132, 145 (1992). In many cases, the resulting children are only related to their intended
father. See JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW
REPRODUCTIVE TECHNOLOGIES 257 n.30 (1994).
    8. Anton van Niekerk &    Liezl van Zyl, The Ethics of Surrogacy: Women's
Reproductive Labour, 21 J. MED. ETHICS 345, 345 (1995) (internal quotations and
parentheticals omitted).
    9. See Janice C. Ciccarelli & Linda J. Beckman, Navigating Rough Waters: An
Overview of Psychological Aspects of Surrogacy, 61 J. SOC. ISSUES 21, 22 (2005).

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