Vanderbilt Law Review

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Advances in medicine are reported almost daily in the media. Medical researchers have developed and are continuing to develop new methods of creating, saving, and prolonging life. This Special Project examines the impact that rapidly advancing medical technology has on the law governing conception, pregnancy, and birth.

Although medical techniques have advanced rapidly during the past decades, state and federal legislatures have responded in-adequately to the legal consequences of these new birth technologies. The resulting lag between technology and the law has forced courts to confront new situations that do not fit neatly into the statutory framework created to deal with past fact situations. For example, courts have applied statutes prohibiting "child bartering"to surrogate parenting cases and statutes prohibiting fetal experimentation to artificial insemination cases although it is clear that the legislators never considered such fact patterns when passing the statutes. A lag is inevitable because the law can only respond to, rather than predict, emerging medical developments. Nonetheless, legislators must respond promptly by confronting the new legal issues that result from new medical technologies.

One impediment to prompt legislative response to the lag between medical technology and the law is the controversial nature of the legal problems posed. Abortion continues to be an extremely controversial issue thirteen years after the Supreme Court legalized it in the landmark decision Roe v. Wade. The "Baby Doe"issue of whether to force hospitals and parents of severely deformed newborns to provide medical care is another extremely controversial issue. "Baby Doe" has become highly politicized as the Reagan administration, Congress, right-to-life groups, disability groups, medical professionals, and other groups have taken stances. Surrogate parenting also has produced controversial situations. In one incident, a New York couple contracted with a California surrogate mother. When the surrogate mother breached the agreement, the couple brought suit. The court discovered that the couple consisted of a man and a transsexual, thus raising the issue of whether transsexuals or homosexuals should be allowed to adopt children by contracting with surrogate mothers.