Gestation, Intent, and the Seed: Defining Motherhood in the era of Assisted Human Reproduction

Malina Coleman, University of Akron School of Law

Abstract

The practice of surrogate parenting is highly contentious, and replete with divisive, vitally important issues touching on the interests of women, children, human reproduction and the family. Before the trickle of surrogacy contracts turns into a downpour, it would be wise to place the germane issues under the microscope of robust public debate.

This Article examines whether legal motherhood should be based on the preconception intentions of the two women who contribute a reproduction function, on genetic contribution, or on gestation. After assessing the costs and benefits that the various rules generate, the Article recommends that intent should be the determinative factor, but only if a system of rules is in place to protect against overreaching in surrogacy agreements. Otherwise, motherhood should be based on gestation alone.