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Washington Law Review

Abstract

Compensated surrogacy—an arrangement in which a woman carries and gives birth to a child for someone else in exchange for money—intimately affects women. Yet, feminist law reformers have not led efforts to regulate this practice in the United States. Their absence is notable given the significant influence of feminist lawmaking in a host of other areas where women’s interests are at stake. This lack of feminist law reform leadership can be understood, however, in light of the complex issues that surrogacy raises—complexity that has long divided feminists. In response to efforts to pass surrogacy legislation in Washington State in 2010, Legal Voice, a women’s rights organization founded in 1978, worked to develop a progressive, feminist approach to compensated surrogacy. The organization adopted a framework based primarily on two schools of feminist legal thought—an anti-essentialist analysis and a pragmatic approach—under the overarching goal of promoting reproductive justice. This Article proposes the application of these principles to the development of any surrogacy legislation. However, my primary purpose is to urge feminist law advocates to take leadership of surrogacy law reform. Whatever the feminist objections to the practice, people increasingly engage in surrogacy arrangements to create families and to help others to do so. But it is the women who hold the least power and face the highest risk of economic exploitation who bear the most significant risks in these arrangements. Thus, it is imperative that progressive feminists meet the challenge of addressing the complexity of compensated surrogacy, and develop a shared agenda for ensuring reproductive justice in the context of assisted reproductive technologies.

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