The Curing Law: On the Evolution of Baby-Making Markets

The article offers a new paradigm to examine the legal regulation of reproductive technologies. The main argument is that a cure paradigm has shaped historical and current legal baby-making markets. Namely, reproductive technologies that have historically been understood as a cure for infertility (such as sperm donations and egg donations) have developed into market commodities, while others (such as full surrogacy) which have not been understood as a cure, have not. The article examines and critiques the cure paradigm.

Specifically, the article challenges one current manifestation of the cure paradigm: the legal distinction between "full surrogacy" (where a surrogate is impregnated using her own ova) and "gestational surrogacy" (where an embryo is created in vitro and then transferred into the surrogate's uterus). Gestational surrogacy has been established by many state courts and legislatures as a legitimate means of curing female infertility, while full surrogacy has generally been either prohibited or deemed unenforceable. This distinction is problematized in this article not only because it is based on contestable values, but also because it has produced serious market failures that have effectively excluded many potential participants from entering baby-making markets. Thus, the article argues that it is time to reevaluate the cure paradigm.