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Vanderbilt Law Review

First Page

681

Abstract

Through the advancement of modern medical technology, including life-support machines and in vitro fertilization, it may soon become possible to carry out brain-dead surrogacy—that is, gestational surrogacy in brain-dead carriers. When a person experiences brain death, life-support machines can nevertheless artificially maintain the body’s homeostatic functions, including the ability to gestate a fetus, for several years thereafter. There have already been several reported instances of brain-dead pregnant people on ventilation successfully carrying and delivering children. In light of the United States’ historical interest in promoting familymaking, this emerging avenue for surrogacy could increase the availability of surrogates and expand opportunities for infertile couples to welcome a child. Yet so far, no literature has considered the implementation of brain-dead surrogacy from a legal perspective. This Note evaluates the efficacy of brain-dead surrogacy under three different legal frameworks: contracts, organ donation, and wills. These analyses seek to identify an application of brain-dead surrogacy that most effectively protects the interests of the surrogate, the intended parents, and the child alike. Ultimately, brain-dead surrogacy would be best effectuated under the wills framework, by honoring testamentary dispositions of one’s body for reproductive purposes. The wills framework is optimal because it would (1) make altruistic braindead surrogacy enforceable; (2) avoid some harms associated with commercial surrogacy; (3) ensure exclusive and informed consent by the testator-surrogate; and (4) safeguard intended parents’ expectations of parenthood.

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