Surrogacy Contracts Directly Enforcible in Pennsylvania

By John A. Robertson

Surrogacy is legal in many states.  Some, like California, directly enforce gestational carrier contracts.  Others, like Texas, Illinois, and Virginia, enforce only those contracts that are entered into by a married couple who need a surrogate for medical reasons which a judge approves before embryo transfer occurs.  A Pennsylvania court has now shown why gestational surrogacy contract should be directly enforced in the absence of legislation.  Its well-reasoned opinion suggests that more states may be open to this approach to surrogacy.

The Pennsylvania case, In re Baby S., arose out of a gestational surrogacy agreement involving embryos created with donor eggs and husband sperm. The written agreement was indisputably clear that that the intended parents would be the legal rearing parents, their names would appear on the birth certificate, and the carrier would have no rearing rights or duties.  Unlike previous cases questioning the validity of a surrogacy contract, the challenge here came not from the carrier who now wished to assert rearing rights (see In re Baby M and Calvert v. Johnson) but from the wife (the intended rearing mother).  She had praised the carrier’s willingness to help her have a child, which she repeated both at the embryo transfer and at a 20 week ultrasound at 20 weeks of pregnancy, which both intended parents attended.  A month later she informed the parties that “irreconcilable marital difficulties” would make it difficult for her to co-parent the child with the intended father.  She also refused to complete the paperwork for her name to appear on the birth certificate as the mother.

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Female Viagra: Discrimination or Medicalization or Something Else?

Earlier this year, the flibanserin pill, aka “female Viagra,” was introduced to the market, generating tons of headlines. After many years in which the plain old (male) Viagra was the sole sexual stimulator in the market, flibanserin was finally approved last August, following an 18-6 vote by the FDA advisory committee.

Before approval, flibanserin was rejected twice, and reports say that even members on the advisory board who voted in favor still had misgivings despite their final decision. Their concerns were driven by doubts regarding flibanserin’s effectiveness to treat low sexual drives. Trials showed that women who took the pill ‘earned’ only 0.7 “sexually satisfying events” in a month, whereas the drop-out rate due to negative side effects was relatively high – 14%. The side effects associated with flibanserin are low blood pressure, dizziness and such.

So what made this low cost-benefit ratio get the advisory committee’s approval the third time around? Some credit mass political campaigns promoted by women’s organizations claiming to advocate women’s interests. One position advocated by the organizations presented the pill as a treatment for a legit medical problem called HSDD (hypoactive sexual desire disorder), and it was said to be a step towards realization of women’s sexuality. The other side of the debate pushed back against what they perceive as medicalizing another realm of women’s sexuality and subjecting it (again) to the gaze of the male expert.

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