Achieving Reproductive Justice in the International Surrogacy Market

Men and women are increasingly seeking surrogacy arrangements outside of their home country, mainly due to legal restrictions or the high cost of surrogacy in their home countries. Global surrogacy raises numerous issues including the economic status of women involved in surrogacy arrangements, poverty, issues related to what motherhood means and how women from different ethnic, socioeconomic, class, and national backgrounds interact in the global surrogacy market. This essay analyzes whether reproductive justice exists in the current international surrogacy market. Reproductive justice refers to the normative concept that all women, regardless of their ethnic, racial, national, social, or economic backgrounds, should be able to make healthy decisions about their bodies and their families. Rather than using a traditional lens of analyzing assisted reproductive technologies and surrogacy using the tools of liberal feminism (such as focusing on a woman’s individual autonomy), the reproductive justice framework goes beyond the individual woman. The framework acknowledges that each woman is part of a family and community, and aims to support policies that aid entire families and communities in order to support these women. The reproductive justice framework “integrate[s] the concepts of reproductive rights, social justice and human rights.” Reproductive justice proponents aim to “achieve the complete physical, mental, spiritual, political, social, and economic well-being of women and girls, based on the full achievement and protection of women\u27s human rights.” The reproductive justice movement aims to address reproductive concerns faced by women outside of mainstream feminist thought, such as poor women, women of color, and lesbians. Reproductive justice moves away from the language of choice and autonomy because “the ‘right to choose’ means very little when women are powerless.” Additionally, taking cues from sociologist France Winddance Twine, I analyze surrogacy as a form of stratified reproduction. This refers to the concept that certain physical and social reproductive tasks vary based on class, race, ethnic, and global hierarchies. This essay attempts to follow the reproductive justice movement’s example of linking domestic reproductive justice to the global women\u27s movement. In this essay, I briefly introduce some leader countries in the international surrogacy market. I then explore whether reproductive justice is being achieved in the current marketplace. I introduce the reader to sociology literature on reproductive justice in the surrogacy market and briefly provide such suggestions about how law may be used as a tool to achieve such reproductive justice Men and women are increasingly seeking surrogacy arrangements outside of their home country, mainly due to legal restrictions or the high cost of surrogacy in their home countries. Global surrogacy raises numerous issues including the economic status of women involved in surrogacy arrangements, poverty, issues related to what motherhood means and how women from different ethnic, socioeconomic, class, and national backgrounds interact in the global surrogacy market. This essay analyzes whether reproductive justice exists in the current international surrogacy market. Reproductive justice refers to the normative concept that all women, regardless of their ethnic, racial, national, social, or economic backgrounds, should be able to make healthy decisions about their bodies and their families. Rather than using a traditional lens of analyzing assisted reproductive technologies and surrogacy using the tools of liberal feminism (such as focusing on a woman’s individual autonomy), the reproductive justice framework goes beyond the individual woman. The framework acknowledges that each woman is part of a family and community, and aims to support policies that aid entire families and communities in order to support these women. The reproductive justice framework “integrate[s] the concepts of reproductive rights, social justice and human rights.” Reproductive justice proponents aim to “achieve the complete physical, mental, spiritual, political, social, and economic well-being of women and girls, based on the full achievement and protection of women\u27s human rights.” The reproductive justice movement aims to address reproductive concerns faced by women outside of mainstream feminist thought, such as poor women, women of color, and lesbians. Reproductive justice moves away from the language of choice and autonomy because “the ‘right to choose’ means very little when women are powerless.” Additionally, taking cues from sociologist France Winddance Twine, I analyze surrogacy as a form of stratified reproduction. This refers to the concept that certain physical and social reproductive tasks vary based on class, race, ethnic, and global hierarchies

Law in the Time of Zika: Disability Rights and Reproductive Justice Collide

This article focuses on finding common ground between those seeking to ensure abortion access and those advocating for disability rights, using the reaction to the Zika virus as a case study. Although the symptoms of Zika in women were often mild, the correlation of Zika infection in pregnant women to microcephaly affecting their newborns led to travel advisories and alarm bells for pregnant women in areas where the Zika virus was prevalent. Although the rise of microcephaly and its connection to Zika was a cause for concern and investigation, the condition itself is not a death sentence, as headlines suggested. The tenor of the discourse about Zika made it clear that, in the opinion of many, babies with microcephaly would be better off unborn. This article draws attention to the tension between reproductive justice and disability rights in activism and in the courts, using the case of Zika. This article suggests that physician guidance in the Zika context must include a discussion of disability, in addition to reproductive options, such as abortion, adoption, and continuation of the pregnancy. This would bolster both reproductive justice and disability rights values, and women would have more accurate and complete information while facing this difficult decision

Global Legal Responses to Prenatal Gender Identification and Sex Selection

Over one hundred million women in the world are estimated to be “missing” from the world’s population due to some form of gendercide. Gendercide exists on almost every continent and affects every class of people. Gendercide has traditionally taken the form of sex-selective abortion, infanticide, or death caused by neglect. Sex-selective abortions occur when a pregnancy is terminated due to the sex of the fetus. In the last few decades, technological advances have allowed potential parents to identify the gender of their baby early in the first trimester. Recently, with the advent of newer technology that allows one to choose a baby’s gender, such as preimplantation genetic diagnosis (“PGD”) and MicroSort, it is possible for those who can afford it to select their child’s gender instead of resorting to getting rid of a fetus of an unwanted gender. This Article examines the issue of gender selection technology. If the technology is available to choose a child’s gender, is there any reason to restrict access to such technology? Does the answer depend upon how the technology is being used? Many countries have attempted to curb this issue through legislation restricting sex-selective abortions, and some have even gone further to restrict access to ultrasound and other gender identification technology. This Article provides a global overview of such restrictions and examines their bioethical implications. Part I of this Article discusses the practice of sex selection and its impact worldwide. This part examines the impact of sex-selective practices on birth rates in various countries, including the United States. Then, Part II outlines the technological methods available to identify or even choose a child’s gender and what this means for the practice of sex selection. Part III discusses legal efforts to restrict sex selection in India, the United States, and other countries around the world. Part IV analyzes these legal efforts through a bioethical lens, specifically giving consideration to autonomy, justice, and class issues. Although the practice of sex-selective abortion or sex selection is certainly disturbing, this Article concludes that restricting access to the technology that allows sex selection is not an effective answer

Cutting the Cord to Private Cord Blood Banking: Encouraging Compensation for Public Cord Blood Donations after Flynn v. Holder

This Article argues that the Ninth Circuit's recent ruling in Flynn v. Holder, which allowed compensation for peripheral blood stem cells ("PBSCs") obtained via apheresis] under the National Organ Transplant Act ("NOTA'), also opens up the possibility for compensation for umbilical cord blood ("cord blood"). The holding in Flynn applies to cord blood for several reasons. First, Flynn held that bone marrow was subject to NOTA's prohibition on compensation because bone marrow was explicitly mentioned in the statute. In contrast, no mention of cord blood appears in NOTA or its applicable regulations. Also, the procedure to utilize cord blood was not in practice at the time of NOTA passage and could therefore not have been contemplated by Congress. Additionally, similar to PBSCs, when Congress revisited NOTA and passed later amendments adding fetal organs to the prohibition on payment, it chose not to modify the statute to explicitly include cord blood. Finally, there is a longstanding view that blood should not be covered by NOTA's prohibitions and this should apply equally to cord blood. Until recently, bone marrow transplants and PBSC transplants were the only two options for individuals suffering from diseases that damaged bone marrow, such as leukemia and lymphoma. However, advances in technology have allowed cord blood transplants to become a viable alternative to marrow and PBSC transplants for patients who have been unsuccessful in finding a PBSC or bone marrow match. This Article contends that rather than focusing only on increasing the numbers of bone marrow and PBSC donors, it is prudent to focus on increasing cord blood donations as a method of overcoming this problem. The lack of minority or mixed-race bone marrow, PBSC, and cord blood donors in the United States is a significant public health problem that has not been addressed adequately. Cord blood is taken from the umbilical cord of a newborn after the cord has been detached from the baby. Cord blood can be used to treat more than seventy diseases. Expectant mothers are not well-informed about the option to donate cord blood. Often, a pregnant woman's sole source of information about cord blood is from marketing materials provided by private cord blood banks. These private banks offer to store a baby's cord blood for a hefty yearly fee, selling this service as a sort of life insurance policy that could be cashed in should the child get sick in the future. The American Academy of Pediatrics and the American College of Obstetrics and Gynecology advise against private cord blood banking because stored cord blood is of very little value to the individual from whom it was retrieved. In contrast, cord blood that is donated to a public bank can be very useful to individuals requiring a bone marrow transplant. Additionally, recipients of cord blood transplants are able to withstand an imperfect match compared to recipients of bone marrow or PBSC transplants. This is significant because it is difficult to find exact matches for racial minorities and mixed race individuals. Currently, almost 97 percent of cord blood is discarded as medical waste. In addition to compensation, this Article also suggests other methods of making public cord blood donation a more common practice

Fertility Preservation for Medical Reasons and Reproductive Justice

This Article addresses the issues related to fertility preservation in the emerg- ing area of fertility preservation for medical reasons using a reproductive justice framework. Fertility preservation for medical reasons refers to the process of pre- serving the fertility of women (and men) who need to undergo treatments that may cause reduced fertility or sterility. This process typically involves counsel- ing a patient about the potential fertility consequences of their cancer treatment, and then if a patient so chooses (and can afford it), freezing the eggs (or sperm) to potentially use later via in vitro fertilization or using a gestational surrogate. As cancer survival rates improve, the ability to bear children after therapy is increas- ingly a concern for many patients. Some patients may choose their cancer ther- apy based on the risk of fertility loss rather than on its effectiveness to cure the cancer. Unfortunately, a patient's race and insurance status often determines if and when they are told about the fertility consequences of their treatment. Those without insurance are often already financially challenged after a cancer diagno- sis, so physicians may not inform them about fertility preservation due to the high costs

False Framings: the Co-Opting of Sex-Selection by the Anti-Abortion Movement

Sujatha Jesudason and Tracy Weitz provide an empirical examination of the framing of public discourses related to assisted reproductive technology (ART) and abortion by examining two bills considered by the California legislature in “Eggs and Abortion: The Language of Protection in Legislation Regulating Abortion and Egg Donation in Debate over Two California Laws.” Jesudason and Weitz analyze the framing of two different legislative efforts: one allowing non-physician practitioners to perform non-surgical abortions and the other removing the prohibition on egg donor payment in the research setting. Jesudason and Weitz identified three different memes that were present in the discussion of these two bills: health care providers and scientists as inherently suspect, denial of women of agency through speaking about them as passive actors that things happen to, and the focus on potential harms and the need to protect women from harm. What was most compelling about their article is that they convincingly show how these themes were used as political tools by both anti-choice and pro-choice groups in California. Jesudason and Weitz note that “frames and language matter.”</jats:p