Loading...
Contracting Pregnancy
Rebouché, Rachel
Rebouché, Rachel
Citations
Altmetric:
Genre
Journal article
Date
2020
Advisor
Committee member
Group
Department
Subject
Permanent link to this record
Collections
Research Projects
Organizational Units
Journal Issue
DOI
http://dx.doi.org/10.34944/dspace/6193
Abstract
Several states recently have passed laws that permit and
regulate gestational surrogacy, changing course from the prohibitions that
characterized an earlier era. These statutes require mental health counseling
before pregnancy and legal representation for all parties to the contract.
Scholars and practitioners alike herald this legislation as the way forward in
protecting the interests of both intended parents and surrogates.
State law, however, may not resolve a recurrent tension over who controls
prenatal decision making in gestational surrogacy agreements. Intended
parents want authority to make decisions regarding the pregnancy. Contract
provisions cater to that desire and support the broader assumption that
parents should seek as much prenatal information as possible. Yet surrogates
have the right, by statute and as patients, to manage their prenatal care.
Analyzing the most controversial terms of surrogacy contracts—those
governing prenatal testing, prenatal behavior, and abortion—this Article
demonstrates that neither statutory rights nor contractual remedies adequately
address disputes over prenatal care. Rather, mental health professionals who
provide pre-pregnancy counseling and lawyers who draft surrogacy contracts
have greater effect on parties’ expectations and conduct. Lawyers, in
implementing surrogacy contracts, help build trust between parties that
induces compliance with otherwise unenforceable terms. When there is a
conflict between the parties, lawyers diffuse it.
This Article identifies the consequences of relational contracting for surrogacy,
including shielding parties’ behavior from view and entrenching the power of
fertility agencies and brokers. It concludes by suggesting how law might
challenge the dominance of professionals and agencies by opening the fertility
market to a broader population of participants.
Description
Citation
Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020).
Citation to related work
The University of Iowa College of Law
Has part
Iowa Law Review, Vol. 105, Issue 4
ADA compliance
For Americans with Disabilities Act (ADA) accommodation, including help with reading this content, please contact scholarshare@temple.edu