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notes paper - Reproduction is a basic fundamental right...

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Reproduction is a basic fundamental right given to mankind. Unfortunately, there are some that have little or no reproductive capabilities. For this reason, advances in reproductive techniques such as gestational surrogacy, invitro fertilization and egg or sperm donation have sparked new interests to women and couples who do not have the ability to reproduce on their own. More importantly, legal, moral and ethical questions have been raised about these advanced reproductive methods used to substitute natural conception and birth. These techniques raise issues concerning legal rights and parenthood. What occurs in the process of sperm donation? What happens when a surrogate refuses to give up the child? What happens when a donor wishes to reclaim rights to his or her donation? Do the dynamics change when the sperm or egg is defined as property? This research analyzes the historical precedent, donor rights with regards to new methods of reproduction, and legality concerning the definition of mother and resulting surrogacy issues. Legal History The issue of surrogacy is a fairly recent development for lawmakers in the United States, as more and more women are determined to have their own biological children. They now turn to science for a solution to what was once a socially accepted phenomenon. In order to understand the real issues behind surrogacy, it must first be defined. There are two different types of surrogacy: gestational surrogacy and surrogate motherhood. In the former, a woman who has volunteered to carry a baby to term for a couple, receives an embryo which has been formed through in vitro
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fertilization, (IVF), with the gametes of the intended parents. The carrier in this case is not genetically related to the child. This is where surrogate motherhood differs. In this case the carrying mother surrenders her own egg and is, most often, artificially inseminated with the sperm of the biological father. 1 The later is where most of the questions arise. In this case the surrogate mother can now claim a biological tie to the child in question, where as in the former she is basically just an incubator for the forming fetus. 2 It was not until technology had developed that American law needed a way to deal with the issues behind surrogate motherhood and gestational surrogacy. Surrogacy and its surrounding issues fall into the category of reproductive rights, adoption laws and apply to the right to privacy. A significant case, In re Baby M 109 N.J. 396:537 A 2d, 1227(1988), was first filed in January of 1987. In this case, the surrogate mother was biologically related to the child since her egg was used to conceive the baby. She was artificially inseminated with the sperm of the intended father. Upon the birth of the child, she did not want to turn the child over to the legal parents and fled to Florida. The courts ultimately gave custody to the parents and the surrogate mother was allowed visitation rights. She was given these rights due to her biological link to the child. Around the same time in the
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notes paper - Reproduction is a basic fundamental right...

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