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. …
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Sep 26, 2019
Irina Kobzieva 
Open Access
