Babies, bodies and buyers.

AuthorWilliams, Patricia J.

In the thirty-five years since I began my career in legal education, much about the status of women, gender and sexuality has changed. There are the obvious triumphs: more female students, faculty and deans--as well as more bathrooms for more kinds of people than just "men." Life is less lonely now, and conversation more intersectional. There is more openness about LGBT issues. There is marriage equality, however contested. And there is less general tolerance for open forms of harassment.

But challenges remain. While reproductive rights have always been at the center of women's work in the academy, that conversation has changed in complex ways in recent years--in no small part because of revolutionary new assisted-reproductive and genetic technologies. From oosplasmic transfer (1) to pre-implantation genetic diagnosis (2) to the precise gene-editing capabilities of Crispr-cas9, (3) these technologies can facilitate quiet forms of eugenic natalism. Increasingly, consumerist rather than dignitary notions of choice have been deployed to chase non-medical, cosmetic notions of human perfectibility. I worry that this shift signals an ever-more pervasive styling of bodies--including future bodies--as private property, and as inert clay-for-the-molding.

I am hardly alone in my concern that the ultra-contractarianism of our neo-liberal moment is not such a good thing when it dominates all crannies of human endeavor. Its narrowed understanding of corporeal integrity compromises many of the erstwhile goals of public accommodation for all. Below are three stories in which the personal is short-circuited as exclusively private rather than politically expressive as well.

The first story is about surrogate pregnancy--by now a comparatively old-fashioned technology of assisted reproduction, but one rife with the ethical challenges and cultural incoherence to which I allude. In late January of 2014, Kansas State Senator Mary Pilcher-Cook introduced a bill that would have criminalized the use of surrogate contracts in pregnancy and imposed a $10,000 fine and up to a year in jail for anyone participating in such a transaction. (4) The effort was quickly abandoned amid a blizzard of publicity that included pro-lifers battling pro-lifers; Republicans battling Republicans; invocations of God having hired the Virgin Mary as a surrogate; vaginal sonograms broadcast live in a Senate committee; and by a host of other posturing too easily dismissed as risible. (5)

If the bill hadn't been body-slammed into the dust by some of the sillier assertions of its chief proponent (Pilcher-Cook asserted, for example, that surrogacy creates children that are "not going to have either a biological mother, biological father or both" (6)), the discussion might have garnered more attention. The laws regarding surrogacy are a national jumble of inconsistent public policies, extra-legal technological engineering, free-market contracting, civil interventions, and criminal sanctions. However incoherent the Kansas attempt, there was a serious question at its center: whether individually-drafted private contracts are sufficient to settle questions of intended parenthood, or whether the "best interests of the child" standards governing custody, adoption, and other realms of family law should have greater sway.

While some states have long found surrogate contracts not in the public interest, at least ten already criminalize them. (7) Many of those laws were passed in the very early days of ovum transplantation and have not been reviewed in the decades since. Hence, what laws are in place have not nearly kept up with the explosive technological revolution in assisted reproduction. Even in states that purport to regulate, it is largely doctors and IVF technicians who call the shots as to what's acceptable in the realm of surrogacy and reproductive techniques. (8)

There is deep conceptual confusion, as well as outright conflict, about what is at stake in surrogacy. Employing a woman--often a poor or minority woman in strapped economic circumstance--to bear one's child is generally extolled in the language of gift, donation, altruism, joy, hope, sharing, and religiously-inflected fruitfulness. (9) But it is, at present, a mostly commercial transaction, involving thorny issues of pregnancy as labor, childbirth as priced, equality of bargaining power, exploitation of bodies, and fairness of terms.

As a jurisprudential matter, surrogacy is a form of commodity exchange. It is usually governed by an individual contract purporting to broker the reproductive expectations, freedoms, and health of multiple parties: the donors of eggs, the donors of sperm, those to whom the law assigns parental rights, and those who provide their wombs as gestational spaces. All manner of emotionally-wrenching legal messes have attended this conceptualization of wombs as mere rental spaces with fetal rights of occupation. May a woman be contractually bound--forced in other words--to have an abortion if developmental abnormalities are detected? (10) Or, since surrogacy is increasingly a transnational industry (driven by lower "production costs" of hiring surrogates in poor nations), what is the citizenship status of, say, a child born of an Indian surrogate, impregnated with the egg of a United States citizen, and a Danish sperm donor? (11)

These questions are not only about the technology of assisted reproduction, but also the technological ability to sustain life under circumstances that pit notions of value against one another in configurations of "fetal personhood" and women's health. In one extreme instance, the state of Texas tried to keep a deceased woman, Marlise Munoz, on life support in order to sustain a fourteen-week-old fetus--despite certain developmental injury to the fetus. Texas law provides that "[a] person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient." (12) But Ms. Munoz was not a "patient" any longer when her husband sued to have her removed from life support. She had already passed away from a massive brain hemorrhage, and her fetus had already suffered significant oxygen deprivation. While her husband ultimately won the injunction, the application of the law to a corpse is an odd form of legal fictionalizing that literally deadens the mammalian interdependency of gestational processes. (13)

It also begs the question of what would have happened if Ms. Munoz had been a gestational surrogate. She was, or her remains were, taxonomized as "patient"--and patients have rights, however vexed by fetal personhood laws. Pushing that vexation further still, what if she had instead been categorized outright as service dispenser? If the language of contract had imagined her body to be a passive fetal factory or "container," would there have been more or less suasion in the attempt to hook up a "hired-out" body to pumps and bellows like a mechanized delivery system, effectively imagined without a brain? What happens, in other words, if a surrogate enters a contract that fails to address the risk of complications that threaten her health but not that of the fetus--would she be forced to carry the pregnancy to term either in life or even after death? If Texas's attempt was ruled unconstitutional, the battle nevertheless underscores the degree to which there are implicit issues of dignity, bodily integrity, and public health in surrogacy arrangements. These issues defy and exceed the sphere of private contract.

Of course, Senator Pilcher-Cook's proposal was motivated by an even deeper, if more familiar, conceptual divide: that of when the biological processes set into motion by the fertilization of a human egg will be conferred legal standing as "person." Pilcher-Cook is among those who believe that full personhood is sparked from the moment of conception in any and all pluripotent cells. She assigns agency, autonomy, and a weirdly disembodied vitality even to frozen embryos stashed in laboratory refrigerators because the "value of a...

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