Legal Change and Stigma in Surrogacy and Abortion

Abrams P. , “The Bad Mother: Stigma, Abortion and Surrogacy,” Journal of Law, Medicine, & Ethics 43, no. 2 (2014): 179–191.

In Genesis Abraham is the rearing father, and Sarah's maidservant Hagar is the genetic and gestational mother. If Sarah, Abraham's wife, rears Ishmael, then it is a case of traditional surrogacy. If Hagar rears him, it would not be a case of surrogacy at all.

See Abrams , supra note 1.

381 U.S. 479 (1965).

410 U.S. 113 (1973).

505 U.S. 833 (1992).

Centers for Disease Control and Prevention, “National ART Success Rates, 2011 National Summary,” available at <http://nccd.cdc.gov/DRH_ART/Apps/NationalSummaryReport.aspx> (last visited April 8, 2015.

Often without distinguishing between traditional and gestational surrogacy.

Robertson J. A. , “Egg Freezing and Egg Banking: Autonomy and Alienation in Assisted Reproduction,” Journal of Law and the Biosciences 1, no. 2 (2014): 113–136.

In re Baby M, 537 A.2d 1227 (N.J. 1988).

851 P.2d 776 (Cal. 1993).

Abrams cites Elizabeth Scott for the claim that 95% of surrogacy is gestational. See Abrams , supra note 1. Assuming that Scott's claim is correct, I would expect that most gestational surrogacy would be carried out in circumstances where the agreement of the surrogate to relinquish the child upon birth would be upheld and commercial surrogacy is legal.

Smith T. W. Son J. , NORC at the University of Chicago, Final Report: Trends in Public Attitudes toward Abortion (May, 2013).

A widely discussed article in the New York Times magazine shows how accepting the current cultural narrative is toward gestational surrogacy. Kuczynski A. , “Her Body, My Baby,” New York Times Magazine , November 30, 2008, at 1–14. Kuczynski was criticized for her extravagant life-style, which accompanying photographs vividly displayed. The gestational surrogate, motivated in large part by a desire to help another woman, came across as a much more appealing figure. Reports of less happy outcomes occasionally occur, but do not appear to be so widespread as to spur prohibition of the practice.

See Abrams , supra note 1.

Tex. Fam. Code Ann. § 160.754 (West 2014).

Mammography, oocyte donation, prostate screening, donor milk banks, and nonmedical use of ultrasound are other examples, as well as tobacco and alcohol warnings. Bernstein E. B. , “Disclosure Two Ways,” Journal of Law, Medicine & Ethics 43, no. 2 (2014): 245–255.

Hurdle J. , “Philadelphia Abortion Doctor Guilty of Murder in Late-Term Procedures,” New York Times , May 13, 2013, available at <http://www.nytimes.com/2013/05/14/us/kermit-gosnell-abortion-doctor-found-guilty-of-murder.html> (last visited March 26, 2015).

Even if the restrictive law's bite is eventually removed, the long road to invalidation will send a stronger signal of social disapproval than if not passed at all.

Palmer v. Thompson, 403 U.S. 217 (1971); Brest P. , “Palmer v. Thompson: An Approach to the Problem of Unconstitutional Motivation,” Supreme Court Review (1971): 95–146.

The test states that “a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion.” 505 U.S. 878 (1992).

The fact that a legislature might have thought that there is any health connection however weak is enough. Williamson v. Lee Optical Co. , 348 U.S. 483 (1955).

Planned Parenthood of Greater Tx. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014).

See Planned Parenthood Southeast v. Strange, 2014 LW 1320158 (2014) (importance of health benefit does not justify impact on women of hospital staff privilege requirement for abortion doctors); Planned Parenthood of Wisconsin v. Van Hallen, 738 F.3d 786 (7th Cir. 2013) (Judge Posner states in dicta that the state must show actual need not just rational basis for hospital staff privilege requirement for abortion providers).