Surrogacy and the politics of commodification

Law and Contemporary Problems

Volumn 72, Issue 3, 2009, Pages 109-146

  Scott, Elizabeth S ^a  

^a NONE

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EID: 77952002561     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (290)

1. 750 Ill. Comp. STAT. 47/1-75 (2006)
2. see infra notes 90-96 and accompanying text
3. See Judith Graham, State Sets Standards on Surrogacy Birth; Legislation Called Most Liberal in U.S., Chi. Trib., Jan. 2, 2005, at C1.
4. In the Matter of Baby M, 537 A.2d 1227 (N.J. 1988).
5. See infra notes 22-30 and accompanying text for a description of the Baby M trial and appeal
6. In this article "surrogacy" refers to commercial surrogacy, in which a woman is paid to carry and bear the product of her egg and donor sperm or an implanted, fertilized donor egg. Compare "gift surrogacy," in which a woman agrees to carry and bear another's child without payment.
7. The New York statute passed in 1992 was reported to be the eighteenth statute prohibiting or severely restricting commercial surrogacy contracts. See George E. Curry, New York State May Bar Mothers for Hire, Surrogate Parenting for Pay at Issue, Chi. Trib., May 31, 1992, at 17; sources cited infra note 53.
8. See infra note 71 and accompanying text
9. See Gina Bellefante, Surrogate Mothers' New Niche: Bearing Babies for Gay Couples, N.Y. Times, May 27, 2005, at A1 (profiling various surrogacy relationships between women and gay couples)
10. Judy Keen, Surrogates Relish Unique Role; And Science Has a Place in the Family Too, USA Today, Jan. 23, 2007, at D1 (profiling the positive surrogacy relationship between a woman and a gay couple)
11. Raina Kelley et al., The Curious Lives of Surrogates, Newsweek, Mar. 29, 2008, at 44 (describing surrogacy as "[a]n act of love, but also a financial transaction, that brings people together")
12. Alex Kuczynski, Her Body, My Baby: My Adventures with a Surrogate Mom, N.Y. Times Mag., Nov. 30, 2008, at 42 (describing the author's experience as an intended parent)
13. Monica Rogers, The Birth of a New Tradition; Showers for Surrogates, Chi. Trib., July 13, 2005, at C1 (describing baby showers thrown for surrogate mothers)
14. Brigid Schulte, Sharing the Gift of Life, Wash. Post, May 4, 2008, at C1 (profiling the positive relationship between a surrogate mother, surrogate daughter, and intended parents after fourteen years). Tina Fey and Amy Poehler recently starred in Baby Mama (Universal Pictures 2008), a wacky comedy about a surrogacy arrangement gone awry that got mixed reviews but grossed approximately $70,000,000.
15. See Baby Mama, http://www.boxofficemojo.com/movies/?id=babymama.htm (last visited May 19, 2009).
16. See, e.g., infra notes 89-93 and accompanying text.
17. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (enforcing contract over gestational mother's objection)
18. Doe v. Roe, 717 A.2d 706 (Conn. 1998) (holding that trial court had jurisdiction to approve surrogacy agreement); In re Roberto D.B., 923 A.2d 115 (Md. 2007) (reversing lower court's refusal to remove the surrogate mother's name from a birth certificate when both the surrogate mother and the genetic intended parent desired that the surrogate's name be removed)
19. Culliton v. Beth Israel Deaconess Med. Cntr., 756 N.E.2d 1133 (Mass. 2001) (hospital ordered to place gestational intended parents' names on birth certificate)
20. A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. Ct. 2000) (allowing birth certificate naming intended, genetic parents to issue after a waiting period, but refusing to enforce a pre-birth contract terminating the surrogate mother's parental rights)
21. J.F. v D.B., 879 N.E.2d 749 (Ohio 2007) (holding gestational-surrogacy contract was not against public policy and should be enforced)
22. J.R. v. Utah, 261 F. Supp. 2d 1268 (Utah 2002) (Utah statute prohibiting recording of genetic parents' names on birth certificate held unconstitutional as an undue burden on the fundamental right to procreate).
23. See, e.g., infra notes 98-99 and accompanying text.
24. See, e.g., infra notes 94-101 and accompanying text.
25. "Gestational surrogacy" refers to conception via IVF, where the surrogate is unrelated genetically to the child and "traditional surrogacy" refers to conception via artificial insemination, as in Baby M. The surrogate is the biological mother of the child in traditional surrogacy and (usually) the intended father is the sperm donor.
26. Michael J. Sandel, What Money Can't Buy: The Moral Limits of Markets, Address at Brasenose College, Oxford (May 11-12, 1998), in 21 The Tanner Lectures On Human Values 89, 94 (Grethe B. Peterson ed., 2000), available at http://www.tannerlectures.utah.edu/lectures/sande_100.pdf (explaining how socioeconomic inequality might lead to coercion as on objection to surrogacy).
27. Id.; see also Elizabeth S. Anderson, Is Women's Labor a Commodity? 19 Phil. & Pub. Aff. 71, 74 (1990) (arguing that when women's capacity to carry children "is treated as a commodity, the women who perform it are degraded")
28. Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1928-36 (1987) (analyzing surrogacy as the commodification of women's reproductive services and of children).
29. See, e.g., Radin, supra note 16, at 1930.
30. See, e.g., id. at 1932-34.
31. See, e.g., Surrogate Parenting Assocs. v. Kentucky, 704 S.W.2d 209 (Ky. 1986) (holding that a Kentucky statute prohibiting the sale of a child "for the purpose of adoption" does not apply to a surrogacy contract entered into prior to conception)
32. Syrkowski v. Appleyard, 362 N.W.2d 211 (Mich. 1985) (holding the Michigan Paternity Act, allowing the putative father of a child born out of wedlock to seek a determination of paternity, applies when a surrogate mother is married and the biological and intended father is married to a different woman).
33. See James Feron, Testimony Given on Surrogates' Bill, N.Y. Times, Apr. 12, 1987, at A39 (describing testimony by infertile parents and surrogates favoring the bill).
34. See GENA COREA, The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial Wombs 272-324 (1985) (offering a feminist critique of surrogacy)
35. Patricia A. Avery, Surrogate Mothers: Center of a New Storm, U.S. News & World Rep., June 6, 1983, at 76.
36. Under the contract, Mr. Stern agreed to pay Ms. Whitehead $10,000 in exchange for her agreement to be inseminated, carry any resulting pregnancy to term, deliver the baby, and relinquish it to the Sterns, giving up her parental rights. Stern also agreed to pay $7500 to the Infertility Center of New York. Ms. Whitehead was artificially inseminated with Mr. Stern's sperm and delivered a baby girl. The original birth certificate listed Ms. Whitehead and her husband as the parents of the baby. In the Matter of Baby M, 537 A.2d 1227, 1236 (N.J. 1988).
37. Id at 1236-37. The Sterns reported that they believed Ms. Whitehead to be so distraught as to be suicidal, and so allowed her to keep the baby for a week. When it became apparent that Ms. Whitehead would not relinquish the baby, Mr. Stern sought to enforce the contract. Id. at 1237.
38. Id. Ms. Whitehead fled when a New Jersey process server attempted to deliver an order to relinquish custody. Id.
39. Margot Hornblower, Surrogate Mother Breaks Pact, Wash. Post, Aug. 22, 1986, at A3
40. Elizabeth Kolbert, Surrogate Mother Seeks Baby, N.Y. Times, Aug. 22, 1986, at B2.
41. In the Matter of Baby M, 525 A.2d 1128, 1175-76 (N.J. Super. Ct. 1987), rev'd in part, 537 A.2d 1227 (N.J. 1988).
42. Baby M, 537 A.2d at 1240.
43. Id. at 1241 ("Our law prohibits paying or accepting money in connection with any placement of a child for adoption.") (citing N.J. Stat Ann. § 9:3-54 (West Supp. 1984) (repealed 1994)). The court noted that the policy underlying this law was, in part, concern that the possibility of money for children would make the decision "less voluntary." Id. at 1241.
44. N.J. Stat Ann. § 9:3-41 (West 2009).
45. Baby M, 537 A.2d at 1248 (opining that any decision "prior to the baby's birth is, in the most important sense, uninformed").
46. Iver Peterson, Fitness Test for Baby M's Mother Unfair, Feminists Say, N.Y. Times, Mar. 20, 1987, at B1 (noting a "shift in public attitude" from "an initial negative perception of Ms. Whitehead as a woman who had entered into a contract to have a baby for money and then reneged" to "a victim, exploited by people better off than she and subjected to unfair scrutiny of her family life and personality").
47. Id.; see also James Barron, Views on Surrogacy Harden After Baby M Ruling, N.Y. Times, Apr. 2, 1987, at A1 (examining objections to commodified surrogacy)
48. Michael Kinsley, Baby M and the Moral Logic of Capitalism, Wall ST. J., Apr. 16, 1987, at 31 (noting that the Sterns' "litigation steamroller" and status as "upper-middle-class professionals... created a backlash of sympathy for the underdog [Ms. Whitehead]").
49. Peterson, supra note 31 (noting feminist objections to expert testimony questioning Ms. Whitehead's parenting abilities on the basis of games she played with the child, such as "patty cake")
50. see also Katha Pollitt, The Strange Case of Baby M, The Nation, May 23, 1987, at 682; infra notes 39-42 and accompanying text
51. Carol Sanger, Developing Markets in Baby-Making: In the Matter of Baby M, in CONTRACT STORIES 127 n.118 (2007)
52. see also Pollitt, supra note 34, at 683
53. See Kean Tells Legislators to Look at Surrogacy, N.Y. Times, Apr. 3, 1987, at B2. Governor Kean seemed conflicted on the issue of surrogacy; he found surrogacy arrangements "deeply, deeply disturbing" and did not "like the idea of renting a womb," but "to say it should be banned also goes against my grain." Id.
54. JOSEPH CARDINAL RATZINGER, Instruction on Respect for Human Life in its Origin and the Dignity of Procreation: Replies to Certain Questions of The Day (1987), http://www.usccb.org/prolife/tdocs/donumvitae.shtml
55. see Church Hits Surrogacy, WASH. POST, July 16, 1987, at A9 (reporting on objections to surrogacy contracts in an amicus curiae brief filed by Roman Catholic bishops in the Baby M appeal)
56. Craig R. McCoy, N.J. Bishops Decry Surrogate Parenting as Prostitution, Phila. Inquirer, July 16, 1987, at B1
57. Roberto Suro, Vatican's Moral Mission, N.Y. Times, Mar. 12, 1987, at A1.
58. Child Welfare Unit Plans to Urge a Ban on Surrogacy Pacts, N.Y. Times, May 26, 1987, at A1.
59. Iver Peterson, Baby M Trial Splits Ranks of Feminists, N.Y. Times, Feb. 24, 1987, at B1 (reporting that the membership of the New Jersey National Organization for Women split on surrogacy)
60. see also PHYLLIS CHESLER, Sacred Bond: The Legacy of Baby M (1988) (describing the reluctance of feminists to rally around Whitehead early in the trial)
61. Debbie Ratterman, The Attack on Motherhood, off our Backs: A WOMEN'S NEWSJOURNAL, Dec. 31, 1988, at 41 (reviewing Sacred Bond, which describes the split among feminists in their support of Whitehead).
62. Ellen Goodman, Surrogates Could Make Pregnancy an Industry, L.A. Times, Sept. 2, 1986, at B5 ("I do not believe that anyone should be able to sign away parental rights before she has even borne the child. A baby is not a piece of goods, and human emotions do not make for neat contracts."); Pollitt, supra note 34, at 681.
63. Pollitt, supra note 34, at 682
64. Peterson, supra note 31. One expert diagnosed Ms. Whitehead as having a narcissistic personality disorder because she dyed her hair and criticized her for offering Melissa a stuffed panda rather than pots and pans. Id. Phyllis Chesler, a key supporter of Ms. Whitehead, made the link to the broader issue of discrimination in child-custody disputes.
65. See CHESLER, supra note 39, at 11, 16, 97
66. Keane received $7500 for the Infertility Center's services in brokering the contract. In the Matter of Baby M, 537 A.2d 1227, 1236 (N.J. 1988); see supra note 22.
67. See Peterson, supra note 31
68. Joseph S. Sullivan, Brief by Feminists Opposes Surrogate Parenthood, N.Y. Times, July 31, 1987, at B3.
69. See the list of amicus curiae briefs in In the Matter of Baby M, 537 A2d 1227 (N.J. 1988).
70. In the Matter of Baby M, 537 A.2d at 1249-50 ("[T]he essential evil is the same [as in the sale of a child for adoption], taking advantage of a woman's circumstances (the unwanted pregnancy or the need for money) in order to take away her child.... There are, in civilized society, some things that money can't buy[;]... the surrogate mother's agreement to sell her child is void.")
71. see also infra notes 51-54 and accompanying text (describing the use of commodification rhetoric in New York)
72. Anderson, supra note 16, at 78
73. See supra notes 40-44 and accompanying text
74. See N.Y. ST. Senate Judiciary Comm., Surrogate Parenting in New York: A Proposal for Legislative reform, at 40 (1987) [hereinafter Surrogate Parenting in N.Y.] (proposing regulation of contractual surrogacy in New York and discussing the law in other states).
75. Sam O. Okpaku, The Aftereffects of the Baby M Case, N.Y. Times, Mar. 20, 1988, § 12, at 26. The Nebraska legislature voted 41-1 in favor of a bill prohibiting commercial surrogacy arrangements. Anti-Surrogacy Bill Passes, N.Y. Times, Feb. 6, 1988, § 1, at 28
76. see also 'Baby M' Bill Passes in Michigan, Wash. Post, June 10, 1988, at A4 (describing Michigan bill banning commercial surrogacy)
77. Phillip J. Hilts, N.Y. Ban Urged on Surrogate-Mother Deals, Wash. Post, May 30, 1988, at A4 (reporting that twenty states were considering banning commercial surrogacy).
78. Hilts, supra note 52. Post-Baby M statutes included: Ariz. Rev. Stat. Ann. § 25-218(A) (1989) (prohibiting commercial surrogacy contracts and granting the surrogate status as the legal mother), invalidated by Soos v. Superior Ct. (Maricopa County), 897 P.2d 1356, 1360 (Ariz. App. 1994) (holding that the statute violates equal protection, for "a man [can] rebut the presumption of legal paternity by proving 'fatherhood' but [the statute] does not provide the same opportunity for a woman")
79. Ind. Code § 31-20-1-1 (1988) (declaring surrogacy contracts unenforceable as against public policy)
80. LA. Rev. Stat. Ann. § 9:2713 (1987) (declaring surrogacy contracts void and unenforceable as against public policy)
81. Mich. Comp. Laws §§ 722.851-.863 (1988) (declaring surrogacy contracts void and unenforceable as against public policy; declaring payment for surrogacy a misdemeanor)
82. NEB. Rev. Stat. § 25-21, 200 (1988) (declaring surrogacy contracts void); N.D. Cent. Code §§ 14-18-01 to -07 (1989) (declaring surrogacy contracts void and that surrogate is the legal mother of the resulting child)
83. Utah Code Ann. § 76-7-204 (1989) (granting surrogate status as the legal mother), invalidated by J.R. v. Utah, 261 F. Supp. 2d 1268, 1272 (D. Utah 2003) (a statute presuming a gestational surrogate is the mother is unconstitutional as a burden on the fundamental right to privacy and procreation).
84. For example, the Nebraska statute passed in early 1988 on a forty-one to one vote of the legislature, with what appears to be minimal consideration by the legislature. Anti-Surrogacy Bill Passes, supra note 52.
85. See infra notes 64-67 and accompanying text
86. See Surrogate Parenting in N.Y., supra note 51, at 51-56 (recommending legislation requiring judicial approval of a surrogacy contract prior to artificial insemination, suggesting means to ensure informed consent, and setting forth a specific-performance remedy for breach)
87. Jeffrey Schmalz, Albany Surrogacy Bill is Withdrawn, N.Y. Times, June 18, 1987, at B2.
88. See Hilts, supra note 52
89. In the task force hearings held in May 1987, the New York State Coalition on Women's Legislative Issues urged that "surrogacy contracts dehumanized women and commercialized reproduction." The group also argued that women could not waive their parental rights before birth when they could not calculate the enormous physical and emotional effects of pregnancy. N.Y. State Task force on Life & the Law, Surrogate Parenting: Analysis and Recommendations for Public Policy 104-05 (1988) [hereinafter Surrogate Parenting: Analysis and Recommendations for Public Policy].
90. New York St. Dep't. of Health, The Business of Surrogate Parenting 1 (1992) [hereinafter The Business of Surrogate Parenting]
91. see Curry, supra note 7 (describing the importance of the Health Department report as an impetus for legislation after several unsuccessful efforts by Governor Cuomo, beginning in 1989)
92. See The Business of Surrogate Parenting, supra note 60, at 1
93. see also David Bauder, Proposal Targets Surrogate Parenting, The Times UNION (Albany), May 13, 1992, at B10
94. N.Y. Counsel to the Governor, 12590 Legislative Bill & Veto Jacket, ch. 308, at 2 (1992) [hereinafter Legislative Bill & Veto Jacket] (on file with Law and Contemporary Problems) (reporting the results of the Senate vote on the bill, 59-0, and the General Assembly vote, 104-39).
95. Editorial, Ban Commercial Surrogacy, Buff. News, June 11, 1989
96. Editorial, It's Baby-Selling and It's Wrong, N.Y. Times, June 4, 1988, at A26
97. Editorial, Wanna Buy a Baby?, Daily News, May 19, 1992
98. Editorial, Womb to Rent, Newsday, June 8, 1992, at 32
99. Memorandum from Paulette Taylor, General Counsel, State of New York Division for Women, to Elizabeth Moore, Counsel to the Governor (July 9, 1992), Legislative Bill & Veto Jacket, supra note 62, at 25
100. Memorandum from Frederick B. Meservy, Acting Executive Director, State of New York Council on Children and Families to Elizabeth Moore, Counsel to the Governor (July 8, 1992), Legislative Bill & Veto Jacket, supra note 62, at 24.
101. Letter from William Pierce, President, National Council for Adoption, to Christopher J. Mega, Chair, Senate Judiciary Committee (May 22, 1992)
102. Legislative Bill & Veto Jacket, supra note 62, at 41. John M. Kerry of the Catholic Conference suggested that a child born of a surrogacy arrangement would "grow up with the horrifying realization that his real mother conceived him in order to sell him." Letter from John M. Kerry, Executive Director of the New York State Catholic Conference, to Elizabeth Moore, Counsel to the Governor (June 30, 1992)
103. Legislative Bill & Veto Jacket, supra note 62, at 94-95
104. Letter & Memorandum from Joan Leary Matthews, Co-Chair, Women's Bar Association of the State of New York, to Mario M. Cuomo, Governor of the State of New York (July 9, 1992), Legislative Bill & Veto Jacket, supra note 62, at 32-36
105. Memorandum from Marilyn Pitterman, President; Lois Shapiro-Canter, Lobbyist; and Simone Charlton, Legislative Vice President, New York State National Organization for Women, to Elizabeth Moore, Counsel to the Governor (May 26, 1992), Legislative Bill & Veto Jacket, supra note 62, at 62. The NOW memorandum described surrogacy as threatening the "potential erosion of parental, reproductive, and privacy rights of women."
106. Letter from G. Oliver Koppell, Member of Assembly, to Mario M. Cuomo, Governor of the State of New York (July 2, 1992), Legislative Bill & Veto Jacket, supra note 62, at 15 (noting Weinstein's sponsorship of the bill).
107. Id. (letter opposing bill). Koppell pointed out that the Health Department report, The Business of Surrogate Parenting, supra note 60, found only three cases involving serious problems. Id.
108. Parent's letters described their joy in their children and warm relationships with surrogates
109. See letters collected in Legislative Bill & Veto Jacket, supra note 62
110. see also Curry, supra note 7 (describing "no organized opposition")
111. In an interview, Noel Keane even appeared to endorse allowing courts to decide custody if the surrogate backs out. Catherine Clabby, Surrogate Moms on the Way Out? New Law Prohibits Pregnancy Profits, The Times Union (Albany), July 26, 1992, at 1 (quoting Keane regarding waiting periods: "If [a surrogate] changes her mind in a 20- to 30-day period, you could award custody by the courts based on the best interests of the child."). Only Betsy Aigen, owner of a small surrogacy agency, opposed the bill. Letter from Dr. Betsy Aigen to Elizabeth Moore, Counsel to the Governor, Legislative Bill & Veto Jacket, supra note 62, at 53-61.
112. See, e.g., Antisurrogacy Laws Gain Ground on "Baby Sellers," Challengers Say Last Hopes Are Worth a Fight, Baltimore Sun, July 28, 1992, at 4A (expressing hope that the law would eliminate the practice). This hope may have seemed quite realistic in that forty percent of the surrogacy arrangements in the country were brokered in New York. See Clabby, supra note 70.
113. See N.J. Comm. on Legal & Ethical Problems in The Delivery of Health Care, After Baby M: The Legal, Ethical and Social Dimensions of Surrogacy (1992) [hereinafter AFTER BABY M] (findings of the New Jersey Task Force regarding surrogacy and proposed reform).
114. Randy Diamond, Assembly Baby Broker Bill Goes Nowhere, The Record (New Jersey), Mar. 16, 1994, at A5.
115. See, e.g., the Illinois Gestational Surrogacy Act, 750 Ill. Comp. STAT. 47/1-75 (2006)
116. see also cases cited supra note 11
117. See, e.g., sources cited supra note 9.
118. This response is evident in statements by legislators in Illinois and other states, see infra note 88, and by courts, authorizing intended parents to be named on the birth certificate, even without statutory authorization, see cases cited supra note 11
119. See infra notes 81-87 and accompanying text
120. See infra note 98 and accompanying text
121. Louise Brown was the first child born by IVF in 1978. Thus, gestational surrogacy was relatively new in the 1980s. The use of IVF increased dramatically from the mid-1980s through 2002. Debora L. Spar, the Baby Business: How Money, Science and Politics Drive The Commerce of Conception 24, 32 (2006).
122. Unif. Status of Children of Assisted Conception ACT (1988)
123. A.B.A's 2 Models for 'Baby M' Laws, N.Y. Times, Feb. 9, 1989, at C13 (noting that the 1989 ABA Model Surrogacy Act offered two alternatives-a ban on enforcement of contracts providing financial compensation to a surrogate, and a statute authorizing but regulating surrogacy).
124. 851 P.2d 776, 778 (Cal. 1993). Ms. Calvert, the intended mother, could not become pregnant because of a hysterectomy.
125. Id. at 787. The court distinguished between the constitutional protections granted to a woman who chooses to bear her own child and a woman who enters a contractual surrogacy agreement. Id.
126. Katha Pollitt was unusual in her scathing denunciation of the Calvert decision. Katha Pollitt, When is a Mother Not a Mother?, The Nation, Dec. 31, 1990, at 839, 842 ("[The decision] defines, or redefines, maternity in a way that is thoroughly degrading to women.").
127. See Sanger, supra note 35, at 140
128. See cases cited supra note 11
129. SPAR, supra note 79, at 28-30. In 1985, IVF produced a child about 10-15% of the time; by 2002, the odds had risen to 30-35% for women under age 35. Id. at 28, 55.
130. See cases cited supra note 11. When all parties are in agreement, courts have struck down state statutes prohibiting such agreements. For example, one appellate court held a statute making the surrogate the child's legal mother to be unconstitutional when applied to disputes between the intended parents when the intended mother was also the biological parent. Soos v. Super. Ct., 897 P.2d 1356, 1361 (Ariz. Ct. App. 1994) (striking down statute on equal-protection grounds for treating genetic mother and father differently)
131. see also J.R. v. Utah, 261 F. Supp. 2d 1268 (D. Utah 2003) (holding Utah statute unconstitutional that prohibited putting the genetic parent's names on the birth certificate and that automatically granted the gestational surrogate status as the legal mother).
132. Unif. Parentage ACT, 9B U.L.A. 299 (2000) (referring only to gestational surrogacy)
133. 750 Ill. Comp. Stat. 47/25 (2006)
134. Fla. Stat. § 742.15 (2008) (referring only to gestational surrogacy)
135. Nev. Rev. Stat. § 126.045 (2008) (requiring "an egg and sperm from the intended parents"). Some states authorize enforcement without distinguishing between gestational and traditional agreements. E.g., VA. Code Ann. § 20-159 (2008)
136. N.H. Rev. Stat. §§ 168-B:1 to -B:32 (2008).
137. For example, in 2000, the Uniform Parentage Act provision offering states the option of declaring surrogacy agreements void was repealed, on the ground that regulation was essential because parties would continue to enter these agreements. See Unif. Parentage Act § 801, 9B U.L.A. 362 cmt. (2000)
138. see also In re Parentage of M.J., 787 N.E.2d 144 (Ill. 2003).
139. In re M.J., 787 N.E.2d at 150 (emphasizing that the Illinois Parentage Act, enacted in 1975, did not contemplate the new reproductive technologies).
140. 750 ILL. Comp. Stat. 47/15 (2006)
141. Unif. Parentage Act, 9B U.L.A. 299 (2000).
142. 750 Ill. Comp. Stat. 47/20(a)(2), 20(b)(2) (2006).
143. The statute also directs that parentage be determined by a judicial proceeding on the basis of the parties' intent if the parties fail to meet statutory requirements. 47/25(e). Further, it allows contract terms regulating the surrogate's behavior in matters that may affect the health of the fetus, including compliance with medical advice and abstention from alcohol, tobacco, and nonprescription drugs. 47/25(d).
144. Nidhi Desai, an attorney intimately involved in drafting and proposing the bill, reports that few opponents-and no women's groups-spoke against it. According to Desai, who testified in support of the bill, "the members [legislators] had a lot of questions, and they were satisfied with the answers." Telephone Interview with Nidhi Desai, in Chicago, Ill. (July 9, 2008).
145. See Graham, supra note 2 (quoting the bill's House sponsor: "The idea was to clarify who has responsibility for the child born through this process," and to avoid litigation); see also Rogers, supra note 9
146. H.R. Roll Call, H.B. 4962, 93rd Gen. Assem., Third Reading (Ill. 2004) (vote recorded 113-0)
147. S. Vote, H.B. 4962, 93rd Gen. Assem., Third Reading (Ill. 2004) (vote recorded 53-0).
148. Mike Kaszuba, Group Says Surrogacy Bill Allows for Baby-Selling, Minn. Star Trib., Apr. 9, 2008, at 5B.
149. See RESOLVE: The National Infertility Association, http://www.resolve.org (last visited Feb. 1, 2009)
150. see also T.W. Budig, Surrogacy Legislation Fills a Void, Supporters Say, Isanti County News, Mar. 13, 2008, available at http://isanticountynews.com/index.php?option=com_content&task= view&id=2942&Itemid=59 (describing political opposition to and support of the Minnesota bill).
151. Andy Birkey, Surrogacy Bill Passes Minnesota Legislature, Reproductive Health, May 19, 2008, http://www.rhrealitycheck.org/blog/2008/05/16/surrogacy-bill-passes-minnesota-legislature
152. Governor Tim Pawlenty, Letter to James P. Metzen Vetoing the 2008 Surrogacy Gestational Bill, S. 85-2965, 117th Day, at 10378-79 (Minn. 2008), available at http://www.senate.leg.state.mn.us/journals/2007-2008/20080516117.pdf#Page67.
153. Erich Goode and Nachman Ben-Yehuda authored the authoritative analysis of moral panics. Erich Goode & Nachman Ben-Yehuda, Moral Panics: The Social Construction of Deviance (1994).
154. See SPAR, supra note 79, at 70
155. Id. at 24, 26-30 (explaining the birth and growth of the "baby market" and discussing Louise Brown).
156. See generally supra notes 15-16 (describing philosophical arguments against surrogacy)
157. For a gripping fictional account, see MARGARET ATWOOD, The Handmaid's Tale (1985), describing a futuristic, patriarchal society where the only role of women is to submissively reproduce (although not through reproductive technologies). See generally Corea, supra note 21.
158. Both the New York and New Jersey task force reports linked Baby M to social and ethical issues raised by new reproductive technologies
159. See After BABY M, supra note 72, at 1 (New Jersey report)
160. Surrogate Parenting: Analysis and Recommendations for Public Policy, supra note 58, at 1-2 (New York report). Unfamiliar risks often appear to be more threatening than familiar risks. Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L. REV. 683, 783 (1999).
161. See Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, in Judgment Under Uncertainty: heuristics and Biases 3 (Daniel Kahneman, Paul Slovic, & Amos Tversky eds., 1982).
162. Paul Slovic, Baruch Fischhoff & Sarah Lichtenstein, Fact Versus Fears: Understanding Perceived Risk, in Judgment Under Uncertainty: Heuristics and Biases, supra note 112, at 465
163. Another case frequently cited involved intended parents who allegedly refused to take twin babies, insisting that they had only agreed to take one child. The Business of Surrogate Parenting, supra note 61, at 8.
164. See generally Kuran & Sunstein, supra note 111
165. Both advocated for restrictive legislation and played key roles in the political process. Beginning in 1989, Governor Cuomo introduced a bill banning surrogacy in each legislative session until it was passed in 1992. See sources cited, supra note 60.
166. Feminist activism against surrogacy is described supra notes 39-46 and accompanying text. Phyllis Chessler played a key role as an opinion leader in mobilizing feminist support. In her book, Sacred Bond, she describes the roles of various individuals and groups in building support for Ms. Whitehead and opposition to surrogacy. Chesler, supra note 39, at 71-107. Catholic opposition to surrogacy is described supra note 37 and accompanying text.
167. See Editorial, Nothing Surrogate About the Pain, N.Y. Times, Mar. 9, 1987, at A14
168. see also editorials favoring the New York statute cited supra note 63
169. See, e.g., infra note 146 and accompanying text.
170. See, e.g., id. The New Jersey task force reported that only fourteen agencies existed, of which only six had arranged forty or more surrogacies. After Baby M, supra note 72, at 39. Keane operated the only sizable agency arranging surrogacy contracts during this period, suggesting the extent to which the threat of surrogacy was exaggerated in the midst of the moral panic surrounding Baby M. The Business of Surrogate Parenting, supra note 61, at 3-8. For an informative description of Keane and his role, see Sanger, supra note 35, at 144-49.
171. See Curry, supra note 7 (describing the importance of the Health department report as a catalyst for the legislation)
172. Pollitt, supra note 34, at 682
173. Id. ("[W]e never found out why Dr. Elizabeth Stern claimed to be infertile on her application... or why she didn't confirm that diagnosis until shortly before the case went to trial, much less consult a specialist in the management of MS pregnancies.")
174. Sanger, supra note 35, at 153-54 ("Bill and Betsy had never tried to conceive a child together....").
175. After Baby M, supra note 72, at 13-14 (describing infertility data, causes, and prevention)
176. Surrogate Parenting: Analysis and Recommendations for Public Policy, supra note 58, at 7-13 (same)
177. See supra notes 68-70. The legislative packet includes many letters from organizations supporting the statute and only a handful, mostly from individuals, opposed.
178. See Legislative Bill & Veto Jacket, supra note 62
179. See Peterson, supra note 31
180. Peterson, supra note 39
181. Ratzinger, supra note 37. The statement, authored by Joseph Cardinal Ratzinger (the current Pope Benedict XVI) was initiated in the early 1980s by Pope John Paul II, out of concern that new reproductive technologies were inconsistent with traditional religious norms.
182. See also Bernard Lo, Vatican Statement on Life Is a Start, Not an Answer, L.A. TIMES, Mar. 19, 1987, at 5 (describing the Church's statement)
183. Roberto Suro, Vatican's Moral Mission, N.Y. Times, Mar. 12, 1987, at A1 ("[The Vatican's statement] exploits what some church officials consider an unparalleled opportunity to influence governments before they enact laws on controversial medical innovations.").
184. See, e.g., Church Hits Surrogacy, supra note 37.
185. An amicus curiae brief submitted to the New Jersey Supreme Court in Baby M by the New Jersey Catholic Conference stated that surrogacy is "a new form of prostitution,... traffic[king] for profit in human lives," degrading women, and "dehumaniz[ing] children." Craig McCoy, N.J. Bishops Decry Surrogate Parenting as Prostitution, Phila. Inquirer, July 16, 1987, at B1.
186. See generally Kristin Luker, Abortion and The Politics of Motherhood 194-208 (1984)
187. E.g., Lorraine Sorrel, Baby M Again, off our Backs: A Women's Newsjournal, July 31, 1987, at 26. Sorrel argued that Ms. Whitehead should be held to her contract or else women's abilities to make reproductive decisions would be threatened and motherhood would be unduly sanctified so women could not assume other roles. Opponents of surrogacy and supporters of Ms. Whitehead noted the reluctance of feminists to get on board. E.g., CHESLER, supra note 39, at 22, 34 (noting feminist claims that a woman should have the right to control the use of her body, and arguments that "patriarchal motherhood" has taken away the sanctity of biological reproduction)
188. Pollitt, supra note 34, at 685 ("Some women argue that to allow Ms. Whitehead to back out of her pledge would be to stigmatize all women as irrational and incapable of adulthood under the law."). A few feminist legal scholars also argued for enforcement of surrogacy contracts.
189. See, e.g., Lori Andrews, Surrogate Motherhood: The Challenge for Feminists, 16 Law Med. & Health Care 72, 78 (1988) (arguing that it is sexist and classist to assume that poor women cannot make educated reproductive choices).
190. Pollitt, supra note 34, at 688
191. See e.g., Katherine Bartlett, Re-Expressing Parenthood, 98 Yale L. J. 293, 333-34 (1988)
192. Vicki C. Jackson, Baby M and the Question of Parenthood, 76 Geo. L. J. 1811, 1818-20 (1988).
193. Bartlett, supra note 138, at 333 ("[Surrogacy] presupposes that the biological mother-child bond is easily severed, that pregnancy and childbirth is a process which does not necessarily entail enduring human emotion and permanent connectedness, that women can have children and give them up if the price is right....")
194. Jackson, supra note 138, at 1818-20
195. This points to a division within feminist theory. Liberal feminists have tended to emphasize gender equality and focus on women as autonomous individuals, while relational (or "difference") feminists emphasize women's nurturing and relational tendencies, which distinguish them from men.
196. See generally CAROL GILLIGAN, In a Different Voice: Psychological Theory and Women's Development (1982). Martha Fineman argues that lawmakers should protect the "mother-child dyad" as the core family relationship.
197. See generally Martha Fineman, the Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies (1995)
198. Many surrogates who are happy with their involvement in surrogacy arrangements offer this description of their decision
199. See Kelley, supra note 9; Schulte, supra note 9
200. See Pollitt, supra note 34, at 685 ("If [commercial surrogacy] becomes a socially acceptable way for a wife to help out the family budget, how can the law protect women from being coerced into contracts by their husbands?")
201. E.g., Anderson, supra note 16, at 81-82
202. Pollitt, supra note 34, at 684-85
203. Pollitt, supra note 34, at 688 (arguing that if surrogacy contracts were unenforceable, the "real loser... would be the baby-broker... and that would be a very good thing").
204. See In the Matter of Baby M, 537 A.2d 1227, 1241, 1244-45 (N.J. Super. Ct. 1987) (noting the risks of "baby-bartering" when intermediaries accept money for arranging adoptions; construing "the child named therein" in New Jersey's adoption statutes to refer only to a child that has been born, not to a fetus or a planned child)
205. see also N.J. STAT. ANN. §§ 9:3-39.1, -41 (West 2008) (adoption statute prohibiting payment to intermediary for placement of a child for adoption).
206. Some feminists favor banning prostitution, as a degrading occupation that exploits women and values them only for their sexuality. But others argue that women should be free to decide to engage in sexual activity for profit and oppose paternalistic regulation. Compare Catherine A. MacKinnon, Pornography as Defamation and Discrimination, 71 B.U. L. Rev. 793 (1991) (favoring regulation), with Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (1995) (opposing restrictions).
207. Margaret Radin argues that surrogates who feel fulfilled in the role may be subject to "ironic self deception," and "may actually be reinforcing oppressive gender roles." Intended mothers also are potentially subject to "false consciousness," believing they should raise their partners' genetic children.
208. See Radin, supra note 16, at 1930-31
209. Martha A. Field, Surrogate Motherhood: The Legal and Human Issues 71-72 (1988) (discussing the difficulty some surrogates have in parting with a baby)
210. Bartlett, supra note 138, at 333 (describing the bond that develops during pregnancy)
211. Jackson, supra note 138, at 1819 ("[I]t may be quite difficult, even impossible, accurately to evaluate, prior to birth, the ability to surrender the child.")
212. Linda J. Lacey, The Law of Artificial Insemination and Surrogate Parenthood in Oklahoma: Roadblocks to the Right to Procreate, 22 Tulsa L.J. 281, 317 (1987) (arguing that because woman cannot know the pain of separating with a child, "she should not be bound to a provision forcing her to relinquish the child")
213. Pollitt, supra note 34, at 684
214. Jeremy A. Blumenthal, Law and the Emotions: The Problem of Affective Forecasting, 80 IND. L.J. 155, 209-11 (2005) (arguing that individuals often inaccurately forecast future emotional states, and that this deficiency is a reason not to enforce surrogacy contracts)
215. Jackson, supra note 138, at 1819 (arguing that women may not anticipate regret about relinquishing a child)
216. Molly J. Walker Wilson, Precommitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and Limits on Human Decision Making Capacity, 31 J. Legis. 329, 329-30 (2005) (arguing that consent can never be informed because a woman cannot accurately predict how she will feel when giving the child up to the intended parents).
217. See, e.g., Radin, supra note 16, at 1930.
218. Phyllis Chesler, a leading surrogacy activist, titled her book about Baby M, "Sacred Bond." Chesler, supra note 39
219. see also Bartlett, supra note 138, at 333-34 (discussing the assumption that a strong mother-child bond will be formed during pregnancy as part of the ideology of custody law and challenging the wisdom of facilitating the severance of that relationship for cash)
220. Pollitt, supra note 34, at 684 ("Within custody law, there is a strong ideology that through pregnancy and childbirth an enduring bond develops between mother and child which cannot easily be broken.").
221. See Luker, supra note 132, at 197-215 (describing religious conservatives' attitude about the importance of motherhood in women's identity)
222. See Peterson, supra note 31 and sources cited supra note 34 (describing objections to criticisms of Ms. Whitehead's parenting skills).
223. See Peterson, supra note 31 and sources cited supra note 34
224. Nancy D. Polikoff, Why Are Mothers Losing: A Brief Analysis of Criteria Used in Child Custody Determinations, 7 Women's RTS. L. Rep. 235, 236 (1982).
225. See id. (citing studies showing fathers winning between 38% and 63% of disputed custody cases). Overall, about 10% of children were in their fathers' custody in the early 1990s. ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, dividing the Child: Social and Legal Dilemmas of Custody 168 (1992).
226. See Peterson, supra note 31 (describing feminists' anger at the trial and the expert testimony about Whitehead)
227. Chesler, supra note 39, at 11, 16, 97. The year before the trial court's decision in Baby M, Chesler published a study of custody trials that focused on mothers who lost custody. Phyllis Chesler, Mothers on Trial: The Battle for children and Custody (1986).
228. See supra notes 40-46 and accompanying text. Although few feminist opponents of surrogacy regulation spoke out in the political arena, some academic feminists argued against restrictions on surrogacy agreements. See Andrews, supra note 135, at 74-76 (challenging feminist arguments based on exploitation and risk of regret)
229. Marjorie Maguire Schultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. Rev. 297, 346 (1990) (arguing for contractual enforcement of surrogacy agreements because effecting parties' intentions advances gender equality).
230. See generally TIMUR KURAN, Private Truths, Public Lies: The Social Consequences of Preference Falsification (1995) [hereinafter Kuran, Private Truths]
231. Timur Kuran, Ethic Norms and Their Transformation Through Reputational Cascades, 27 J.L. Studies 623 (1998).
232. See also Kuran & Sunstein, supra note 111, at 727-29
233. KURAN, Private Truths, supra note 160, at 60-69
234. One exception was academic Lori Andrews, who spoke out in support of the trial court's decision. See Editorial, Baby M Decision Spurs Wide Debate, N.Y. Times, Apr. 5, 1987, at E1 (noting Andrews' support of the Baby M decision granting custody to the Sterns)
235. see also Andrews, supra note 135
236. See Sanger, supra note 35, at 140
237. Goode & Ben-Yehuda, supra note 102, at 38 (describing how moral panics erupt and subside quickly). 169. Diamond, supra note 73.
238. See Huddleston v. Infertility Ctr. of America, Inc., 700 A.2d 453, 455-56 (Pa. Super. Ct. 1997) (wrongful-death action by the surrogate mother against the infertility clinic that screened the father).
239. Contraceptives were seen as a serious threat to the family, and calls for banning the drugs were common. Debora L. Spar, For Love and Money: The Political Economy of Commercial Surrogacy, 12 REV. Int'l Pol. Econ. 287, 305-06 (2005).
240. Hazel Basilington, The Social Organization of Surrogacy: Relinquishing a Baby and the Role of Payment in the Psychological Detachment Process, 7 J. Health Psychol. 57 (2002) (study of attitudes toward relinquishment)
241. Janice C. Ciccarreli & Linda J. Beckman, Navigating Rough Waters: An Overview of Psychological Aspects of Surrogacy, 61 J. SOC. Issues 21 (2005) (reviewing studies of surrogacy)
242. see also popular media sources cited supra note 9
243. Kelley, supra note 9. However, Indian women, who indeed may be poor, also serve as surrogates for American couples. See Abigail Haworth, Surrogate Mothers: Wombs to Rent, MARIE CLAIRE, available at http://www.marieclaire.com/world-reports/news/international/surrogate-mothers-india (last visited May 8, 2009).
244. Kelley, supra note 9 (describing military wives with husbands away on active duty volunteering to act as surrogates)
245. See Ciccarreli & Beckman, supra note 172, at 31-32 (describing studies showing most surrogates reported satisfaction with experience)
246. Kelley, supra note 9
247. Ciccarreli & Beckman, supra note 172, at 29-30 (describing surrogates reported altruistic motivation)
248. Sanger, supra note 35, at 137 (noting that many women are honored and happy to serve as surrogates for infertile couples)
249. No studies exist on children conceived using surrogacy. Studies of children conceived by other forms of assisted reproduction suggest that the circumstances of birth do not negatively affect development. Ciccarreli & Beckman, supra note 172, at 37.
250. Jennifer Weiss, Now It's Melissa's Time, N.J. Monthly Mag., Mar. 2007, available at http://www.reproductivelawyer.com/news/babym.asp. In her only interview, Melissa offered warm praise of her parents, Bill and Betsy Stern. Id.
251. Sanger, supra note 35, at 140
252. See Kelley, supra note 9
253. See J.R. v. Utah, 261 F. Supp. 2d 1268, 1270 (D. Utah 2002) (describing surrogate's services as "a gestational carrier surrogate")
254. Culliton v. Beth Israel Deaconess Med. Ctr., 756 N.E.2d 1133, 1137 (Mass. 2001) (referring to the surrogate as the "gestational carrier")
255. see also Noa Ben-Asher, The Curing Law: On the Legal Evolution of Baby-Making Markets 30 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Group, Paper No. 08-167), available at http://ssrn.com/abstract=1095448 (arguing the importance of this distinction).
256. Richard A. Eptein, Surrogacy: The Case for Full Contractual Enforcement, 81 VA. L. REV. 2305, 2331 (2005) (pointing out that child is father's own child)
257. Barbara Katz Rothman, Reproductive Technologies and Surrogacy: A Feminist Perspective, 25 Creighton L. REV. 1599, 1603 (1992) (describing but challenging this argument).
258. In the floor debate in the Illinois House, Barbara Currie, the sponsor of the GSA, reassured her colleagues: "In a situation where the birth mother... provided the egg that results in this baby, there is no way you can't grant her the opportunity to change her mind at the 11th hour. But the woman in a gestational surrogacy program... has no biological connection to the child." H.R. 111, 93rd Gen. Assem., 22, at 23 (Ill. 2004).
259. Legal scholars have also drawn a distinction between traditional and gestational surrogacy. See Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 Harv. L. Rev. 835, 898 (2000) (arguing that traditional surrogacy agreements should be subject to the same legal standard as adoption because the surrogate is in fact the child's mother, but that the surrogate has no similar claim in a gestational-surrogacy agreement).
260. Johnson v. Calvert, 851 P.2d 776, 781-83 (Cal. 1993)
261. see supra notes 81-87 and accompanying text
262. Most gestational surrogacy statutes require that one intended parent be the child's genetic parent; a few, including North Dakota, require both intended parents to be genetic parents. Compare 750 ILL. Comp. Stat. 47/20(b)(1) (2006) (intended parents must "contribute at least one of the gametes resulting in a pre-embryo that the gestational surrogate will attempt to carry to term"), with N.D. Cent. Code §§ 14-18-01 (2008) ("'Gestational carrier' means an adult woman who enters into an agreement to have an embryo implanted in her and bear the resulting child for intended parents, where the embryo is conceived by using the egg and sperm of the intended parents.").
263. See sources cited supra note 148
264. Some feminists argue that maternity rests on nurturance in pregnancy and not the genetic tie. See generally BARBARA KATZ ROTHMAN, Recreating Motherhood: Ideology and Technology in a Patriarchal Society (1989).
265. Critics of surrogacy often emphasize the importance of the mother-child relationship formed during pregnancy in arguing against contract enforcement. See Bartlett, supra note 138, at 333-34
266. Katz Rothman, supra note 182, at 1607 (emphasizing the importance of pregnancy as social relationship between surrogate and child)
267. FLA. STAT. § 742.15 (2008) (intended mother must be unable to safely carry a baby to term)
268. 750 Ill. Comp. STAT. 47/20 (2006) ("[H]e, she, or they have a medical need for the gestational surrogacy....")
269. Tex. Fam. Code Ann. §160.756(b)(2) (2008) (A court may only validate a gestational surrogacy agreement if "medical evidence provided shows that the intended mother is unable to carry a pregnancy to term.").
270. See supra note 125 (describing skeptical comments about Ms. Stern's motivation in pursuing surrogacy).
271. See Ben-Asher, supra note 181, at 34-42 (arguing that reproductive technologies (including surrogacy) become socially accepted when they are viewed as cures for infertility)
272. SPAR, supra note 79, at 78-82. ("[O]nce IVF raised the prospect of selling eggs apart from pregnancy, supply began to grow.").
273. See generally Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 Colum. L. REV. 181 (2001) (describing and challenging the central importance of motherhood in legal-feminist thought).
274. Reva Siegel, The Rights' Reasons: Constitutional Conflict and the Spread of Women-Protective Anti-Abortion Argument, 57 Duke L.J. 1641, 1642 (2008) (describing the "women-protective" rationale in the Carhart decision).
275. Gonzalez v. Carhart, 550 U.S. 124, 159 (2007) ("[S]ome women come to regret the choice they make to abort the infant life they once created and sustained.") The women-protective argument also persuaded the South Dakota legislature to ban abortion, an enactment later defeated by voter referendum. See Siegel, supra note 195, at 1642.
276. S.D. Task Force to Study Abortion, Report of the South Dakota Task Force to Study Abortion 56 (2005), available at http://www.voteyesforlife.com/docs/Task_Force_Report.pdf (cited in Siegel, supra note 195, at 1163).
277. Siegel, supra note 195, at 1649
278. Id. at 1652 (noting that the South Dakota report expressed concerns that women would receive "abortions they do not want, and in all events, should not have").
279. In the Matter of Baby M, 537 A.2d 1227, 1241 (N.J. 1988).
280. Siegel, supra note 195, at 1646 n.16.
281. See supra notes 138-139 and accompanying text
282. See supra note 142
283. See supra note 86 and accompanying text
284. Among the groups that have played an advocacy role in promoting law reform in recent years is Resolve, a group of parents and infertility professionals
285. See RESOLVE: The National Infertility Association, http://www.resolve.org (last visited Feb. 1, 2009).
286. See supra notes 90-97 and accompanying text (discussing passage of Illinois Gestational Surrogacy Act)
287. See Haworth, supra note 173 (describing a clinic in India arranging for local women to act as surrogates for Americans at a fraction of the U.S. cost).
288. See Ben-Asher, supra note 181, at 142 (arguing that traditional surrogacy should be allowed because only wealthy people can afford gestational surrogacy). Readers responding to Alex Kuczynski's New York Times article about her experience acquiring a child through surrogacy, supra note 9, criticized the cover picture of the author in front of her Hamptons home featuring the baby's nurse standing at attention nearby. Letters to the Editor, N.Y. Times Mag., Dec. 16, 2008, at 16.
289. See generally Kuran & Sunstein, supra note 111 (describing many situations, such as the panic surrounding Love Canal, in which distorted perceptions of risk generate availability cascades that lead to excessively restrictive regulation)
290. See proposals in Kuran & Sunstein, supra note 111, at 746-60