Testing the Limits of Freedom of Contract: The Commercialization of Reproductive Materials and Services

This article examines the cases for and against commercializing, or commodifying, reproductive materials and services. Using a supply/demand third-party framework, three basic scenarios in which commercial-exchange relationships may be possible-exchange of gametes and zygotes, exchange of gestational services, and exchange of fetal material-and the major parties of interest, or stakeholders, are identified. The study sketches the liberal, essentialist, and radical contingency theories that shape the debate over the commercialization of reproductive materials and services. The article then attempts to derive some basic governing principles that reflect as much common ground as possible amongst these various normative perspectives, while recognizing that complete reconciliation is impossible. Taken together, these principles are designed to reflect a strategy of constrained commodification, where commercialization or commodification, that is, financial remuneration, plays a relatively neutral role in the utilization of reproductive materials and services. In light of these principles, the article concludes by sketching legal and regulatory regimes with respect to the exchange of gametes and zygotes, gestational services, and fetal tissue