An Emerging Consensus: Reproductive Technology and the Law

The advent and swift expansion of reproductive technology beginning in the late 1970s accelerated the transformation of the family by undermining sacred assumptions about the reproductive process. In vitro fertilization, embryo transfer, surrogacy, and the cryopreservation of gametic and embryonic material have challenged deeply internalized assumptions about the character and social implications of human reproduction. In addition, reproductive technology has placed third parties -- doctors, lawyers, egg or sperm donors, and gestational or traditional surrogates -- directly at the center of the reproductive process. Inevitably, disputes have developed about the nature and parameters of parenthood and about the rights and duties of the various new participants in the reproductive process. Courts, faced with disputants demanding concrete solutions to these novel arrangements, have been compelled to respond. As they have considered these disputes, judges have almost invariably pleaded for legislative direction. Nevertheless, in the United States, legislatures have responded slowly, if at all. Ironically, the hesitancy of American legislatures to take on the task of regulating reproductive technology may well prove to have been more beneficial than detrimental. In effect, American law has had a few decades to try various approaches, to discard those that did not work, and to elaborate those that did. As a result of judicial trial and error, a consensus, though still tentative and incomplete, has begun to emerge