An Examination and Critique of the Contract Model of Legal Regulation of Preconception Arrangements and an Alternative Proposal for Law Reform in Ontario

grantor: University of TorontoThis dissertation examines the practice of preconception arrangements ("surrogate motherhood") and the central arguments for its legal permissibility to determine how Ontario ought to respond. It claims that the major arguments for the practice from autonomy, equality, welfare maximization and suffering minimization are flawed because, inter alia, they fail to demonstrate the practice achieves these alleged beneficial consequences. Further, the contract model which they advocate is an inapplicable and inappropriate form of legal regulation because, when used in this context of human procreation, it would cause harm to participants and non-participants and to society generally, and it would violate five important ethical principles--autonomy, equality, welfare maximization, suffering minimization and responsible parenthood. The dissertation's claims are advanced in nine ways: (1) The common description of the practice is made more complete and accurate by reference to demographic studies and personal accounts. (2) The arguments of six proponents (John Robertson, Lori Andrews, Richard Posner, Michael Trebilcock, the Ontario Law Reform Commission and the American Fertility Society) are demonstrated to be unconvincing, (3) to rely on an incomplete characterization of persons, and (4) to be based on ideologies of patriarchy, technology and commodification (5) all of which result in flaws of analysis. (6) The contract model advanced by proponents is revealed as inapplicable because the expectation interest it seeks to create is either incapable or unworthy of legal protection, and as (7) inappropriate because of its harmful consequences. (8) Thus, when the contract model is used to regulate preconception arrangements, the practice entails the sale or waiver of reproductive rights; capitalizes on gender, class and race inequality; causes the break-up of families; transfers the pain of childlessness from one person to another; and aims to prevent the development of relationships between mother and child, and mother and father, presenting serious obstacles to the exercise of responsible parenthood. (9) The dissertation concludes that as a social practice of human procreation which, when regulated by contract law, has harmful results, preconception arrangements ought to be governed by family law, and more specifically, by the proposed legislation recommended herein.S.J.D