Feminist Law Professors

Yesterday I noted the current Newsweek cover story on surrogacy. Here’s a bit more to think about in that regard. I’m prepared to assume that the practice of surrogacy is useful. (Even if I weren’t, I’d have to acknowledge it is here to stay. It may be banned or restricted in some states/countries, but it will be available in plenty of others.) The question then for me is what’s the best set of rules for surrogacy. Of course, “best” will depend on your point of view. I want to try to ask the proverbial “woman question” and answer this as a feminist. The Newsweek article invites us to focus on the surrogate’s experience as well as the relationship between the contracting couple and the surrogate. This seems to me to be critical, especially as the surrogate will always be a woman and, as I’m partway through demonstrating elsewhere on the blog, the issues for a woman in the contracting couple are also distinctive.More… It’s interesting to compare the experience in the UK with that here in the US. (I don’t profess real expertise on this, just the gathered impressions from what I’ve read. If there is a real analytical work on this, I’d love to hear about it.) Formally the law is quite different. In the UK surrogacy is not a for-profit enterprise, the surrogate cannot be paid, and the contract is not enforceable. In the US–or at least in the featured states in the US–it is for profit, surrogates are paid and the contracts are enforceable. I’ve already argued that these things are not chance alignments–surrogacy can only exist as a profitable industry if surrogates can be forced to turn over the children. It’s interesting to contrast the accounts of surrogacy (from the surrogate’s viewpoint) in the UK and in the featured US states. For starters, note that the surrogates in the UK do receive money for “expenses” and that it seems to be roughly on the same scale as the money received here. So from a narrow economic view, the two systems are more similar than they appear. But, since the women in the UK have the right to change their minds, their willingness to turn over their children to the intended parents is crucial. Unsurprisingly, this willingness is fostered by a positive relationship between the intending parents and the surrogate mother. In other words, the intending couple have every reason to treat the surrogate with dignity, respect, and good will. And the system usually works–the instances in which the surrogates women change their minds appear to be few. It’s easy to see that the dynamic in the US could well be quite different, though this is not to say it always will be. If the contracting couple knows that the surrogate can be forced to turn over the child, they may choose to assert their authority in any number of ways. Indeed, to the extent surrogacy is likened to baby-sitting, they might tend to treat her as you would a babysitter. On this point, I’d say there’s ample reason to prefer the system in the UK. It appears to allow surrogacy without inviting the more disturbing aspects of surrogacy. It respects the dignity of the women who are surrogates and recognizes their unique role. There’s another important point, of course. The real money in the US isn’t made by the surrogates themselves–it is made by the surrogacy centers that facilitate surrogacy. That is what truly makes it into a for-profit enterprise.

Julie Shapiro–cross posted to Related Topics

In yet another sign that there’s a resurgence of interest in this topic, surrogacy is the cover story in this week’s Newsweek magazine. Interestingly, the focus is on the women who are surrogates. I think this consistent with recent press coverage, but quite different from when the main news was the wonders of technology or ART more generally. It deepens my conviction that it is a good cultural moment to be thinking about these things.

There’s quite a bit to say about this article, but I wanted to offer a brief take on how it is set up. The authors describe surrogacy as “an act of love but also a financial transaction.” This suggests is an interesting way to categorize surrogacy transactions. At one end of the spectrum you might place the ones in India I’ve previously discussed. They fall pretty firmly into the “financial transaction” realm. (Remember that in some the parties never meet. And no one portrayed the Indian women as engaging in acts of love.)

By contrast, and at the other end of the spectrum, surrogacy in Britain is (at least formally) not a financial transaction at all. Surrogates cannot be paid for their services. It’s considered to be altruistic or compassionate. Clearly on the “labor of love” side of the balance?

As far as I can tell, all the cases discussed in Newsweek are commercial surrogacy–the surrogates are in fact paid. Indeed, there’s only fleeting recognition that someone might actually do this absent the money. (I think the listing of places where surrogacy is permitted is deceptive in this regard–it is really a list of where surrogacy contracts will be enforced and where surrogates can be paid.)

What may be most interesting is the initial insistence that, despite the payment, these are not purely commercial transactions–a sale of services or worse yet, goods. Perhaps given the prevalence of a highly romanticized notion of pregnancy these days, it’s impossible to reduce pregnancy to a service. But isn’t it a bit telling that there aren’t a lot of wealthy surrogates? (The article notes that an increasing number of surrogates are military wives, which speaks to the poor compensation provided to service members.) In any event, it seems to reflect some desire to place the US in the middle of the surrogacy spectrum.

I’m happy to agree that portraying surrogacy as a simple sale of services misses a great deal. This article is actually very rich in detail, in providing a more detailed and nuanced portrait of surrogates, considering a range of circumstances and experiences.

–Julie Shapiro (cross-posted to Related Topics)

This decision provides a mechanism for the victim of social networking bad actors to pursue a claim for damages against the site hosting the damaging material. A media account of the suit, captioned Jane Doe v. Friendfinder Network, Inc., explains:

A woman who lives somewhere near Dartmouth College is suing an online sex site, claiming it identified her in her area even though a nude photograph purporting to be her was not.

The woman, suing under the pseudonym “Jane Doe,” says her bogus profile had been on the site for more than a year when someone in her circle of friends told her they had believed it was her and had been discussing it.

The profile on [Adult Friend Finder dot com], which bills itself as the world’s largest community for sex and swingers, said she was seeking “men or women for erotic chat/e-mail/phone fantasies and discreet relationship.”

The profile was of a 40-year-old in the Upper Connecticut River Valley area who had recently separately from her husband, according to the U.S. District Court lawsuit against Friendfinder Network Inc. and Various Inc., an affiliated company.

The woman said all she knows about the creator of the bogus “petra03755” profile – created in June 2005 – is he or she did it using the computer network at Dartmouth College in Hanover, whose zip code is 03755.

A federal judge this week threw out some of the woman’s claims, saying the companies are protected by a 12-year-old federal law that protects Internet service providers and interactive sites from liability for false postings by others. U.S. District Judge Joseph Laplante’s refusal to dismiss all the claims under the Communications Decency Act was an unusual first-round victory for a plaintiff. …

The judge explicitly criticized and rejected the Ninth Circuit’s ruling in Perfect 10 v. CC Bill (see also), writing:

Thus, even if it were free to disregard the plain language of § 230(e)(2), this court cannot accept the defendants’ claim at oral argument that allowing state-law intellectual property claims to survive the CDA would have a “devastating” impact on the internet. Despite the general consensus before the Perfect 10 decision that the CDA did not shield service providers from state intellectual property law, both the internet and so-called “e-commerce” remain alive and well, and show no signs of imminent collapse.

Via Anthony Falzone. When I find a direct link to the opinion I’ll post one.

–Ann Bartow

Update: Thanks to the Stanford Center for Internet & Society, the opinion is available here.