Tagged: reproductive technologies

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Love and Contracts, and Fairness Too

It is not an easy thing to keep the concepts of love and contracts in the same mental frame, but Martha Ertman in Love’s Promises comes as close as any legal scholar ever has in showing the affinities between the two. Indeed, the case she makes for the positive role that enforceable contracts and unenforceable deals play in structuring and protecting what she calls (in a nonjudgmental way) Plan B families is compelling. (Examples of Plan B families are cohabiting households and those led by adoptive parents or parents who have used reproductive technologies.) I am particularly struck by how persuasive the book is in presenting negotiation processes (between cohabitants; prospective spouses; donors and recipients of gametes; and birth and adoptive parents) as generally salutary and beneficial, quite independently of the specific contracts and deals that might arise from them.

We know from experience that almost all family relationships are constructed around informal negotiations, compromises, and arrangements, the details of which are usually implicit and assumed. At the end of the day, Martha is encouraging all of us, regardless of our familial, sexual, and parental predilections, to make the bargaining and the deal-making more explicit. Martha’s book makes a compelling case for why Plan B families can benefit considerably from embracing agreements of all sorts.

Martha’s love affair with contracts, of course, fits nicely with our pervasive twenty-first century capitalist ethos that prioritizes choice, autonomy, and self-determination. Sometimes it seems as if all (or almost all) of us in this country are libertarians of some stripe or another, with some of us emphasizing autonomy in personal and sexual matters and others of us emphasizing economic freedom. On the other side of both sets of debates stands the intermeddling government (if we are feeling polite) or evil bureaucrats (if we are feeling less polite).

Martha is undoubtedly correct that when the government, for example, regulates the use of reproductive technologies (as several European countries have done), it tends to do so at the expense of Plan B families. Nonetheless, it is important to avoid simple dichotomies that present the private as the “good” and the public as the “bad” or “problematic.” Ultimately, I do not believe we can have a fair and normatively appealing contract-based regime in family law without significant involvement by the state. This is because the relationships that Martha writes about are often characterized by significant power and economic disparities. A regime of “pure contract law” (note the scare quotes) can exacerbate rather than mitigate the effects of those disparities.

As Martha recognizes, for example, there are usually considerable power and economic disparities between birth and adoptive parents. In order for Post-Adoption Contract Agreements (PACAs) to protect the interests of birth parents effectively and fairly, it may be necessary not only for courts to interpret them in ways that are favorable to birth parents, but for the government more generally to inform them of the PACA option, educate them about their advisability, and guide them through their enforcement.

There can also be significant power and economic disparities within married and unmarried relationships. When it comes to the former, we need to make sure, through government policies, educational campaigns, and judicial enforcement mechanisms, that a contract regime of prenuptial agreements does not unduly favor wealthier prospective spouses who might be able, if left entirely to their own devices, to set the terms of one-sided contracts. As for unmarried partners, we need to make sure that the more economically powerful parties in cohabiting relationships are not able to dance around contractual obligations after those relationships end in ways that are unfair to the less powerful partners (usually those who work more inside the home).

To her credit, Martha does not allow her passion for contracts to blind her to economic and social realities as reflected in power imbalances within many family relationships. As a result, while the descriptive parts of the book celebrate stories of love and contracts, the normative parts are infused with calls for thoughtful enforcement mechanisms aimed at promoting not only freedom of choice, also but fairness for homemakers (of all genders, sexual orientations, and economic classes). Although the contract aspects of Love’s Promises may get most of the attention (as reflected, for example, in Judge Richard Posner’s blurb on the book’s back cover celebrating “free choice” and “private contractual arrangements”), they are only one part of the story that Martha tells.

It would be a mistake, then, to view Love’s Promises as a simple clarion call for the private ordering of family law. Yes, Martha has great faith in the power of agreements to clarify, structure, and protect families of all kinds. But to accomplish those objectives in fair and just ways, she makes clear that we need laws and policies that are highly attuned to disparities in power imbalances and social biases that harm those who, for reasons of choice, gender, or relative powerlessness, are more involved in homemaking than in moneymaking. To me that is as an important takeaway from Love’s Promises as is its fusion of love and families on the one hand and contracts and deals on the other. The contracts may be the sexy part, but the guaranteeing fairness is the hard one.

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Prohibitions on Egg and Sperm Donor Anonymity and the Impact on Surrogacy

Egg and sperm donations are an integral part of the infertility industry. The donors are usually young men and women who donate relying on the promise of anonymity. This is the norm in the United States. But, internationally things are changing. A growing number of countries have prohibited egg and sperm donor anonymity. This usually means that when the child who was conceived by egg or sperm donation reaches the age of eighteen he can receive the identifying information of the donor and meet his genetic parent.

An expanding movement of commentators is advocating a shift in the United States to an open identity model, which will prohibit anonymity. In fact, last year, Washington state adopted the first modified open identity statute in the United States. Faced by calls for the removal of anonymity, an obvious cause for concern is how would prohibitions on anonymity affect people’s willingness to donate egg and sperm. Supporters of prohibitions on anonymity argue that they only cause short-term shortages in egg and sperm supplies. However, in a study I published in 2010, I showed that unfortunately that does not seem to be the case. My study examined three jurisdictions, which prohibited donor gamete anonymity: Sweden, Victoria (an Australian state) and the United Kingdom. It showed that all these jurisdictions share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.

In a new article, titled “Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogacy,” I examine the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy. Surrogacy has not been part of the international debate on donor gamete anonymity. But the situation in the United States is different. Unlike most foreign jurisdictions that adopted prohibitions on anonymity, the practice of surrogacy in the United States is particularly reliant on donor eggs because of the unique legal regime governing surrogacy here.  Generally, there are two types of surrogacy arrangements: traditional surrogacy and gestational surrogacy. In a traditional surrogacy arrangement the surrogate’s eggs are used and she is the genetic mother of the child, while in gestational surrogacy the intended mother’s eggs or a donor’s eggs are used and the surrogate is not the genetic mother of the conceived child. Most U.S. states that expressly allow surrogacy provide legal certainty only to gestational surrogacy, which relies heavily on donor eggs, while leaving traditional surrogacy in a legal limbo. Without legal certainty, the intended parents may not be the legal parents of the conceived child, and instead the surrogate and even her husband may become the legal parents. Infertility practitioners endorse the legal preference for gestational surrogacy also for psychological reasons, believing that a surrogate who is not genetically related to the baby is less likely to change her mind and refuse to hand over the baby.

The adoption of prohibitions on anonymity in the United States could destabilize the practice of surrogacy in a way that did not occur in other countries that adopted these prohibitions. If, as has happened elsewhere, prohibitions on anonymity will play a role in creating shortages in donor egg supplies in the United States, this could affect the practice of surrogacy in two ways. Individuals seeking surrogacy may need to resort to traditional surrogacy, which does not rely on donor eggs, with the accompanying legal uncertainty. Alternatively, those deterred by the uncertainty enveloping traditional surrogacy may refrain from seeking surrogacy altogether, resulting in a significant contraction of  the practice of surrogacy in the United States. These potential complications suggest that those supporting the adoption of prohibitions on anonymity in the United States, should consider these changes with great caution and think beyond the traditional debate about the privacy of the donors, the privacy and procreational interests of the intended parents, the best interests of the children and the direct effect on gamete supplies.