Shevory, Thomas C. "Rethinking Public and Private Life via the Surrogate Contract." Politics and the Life Sciences 8, 2 (February, 1990):173-84.
Introduction. The following essay employs insights generated by Critical Legal Studies (CLS) scholarship to illuminate issues related to the drawing of contracts for surrogate motherhood. Critical Legal Studies analysis of contract law exposes intellectual and practical weaknesses of contract theory. A fundamental flaw with contract law, and in fact, liberal political theory in general, lies in its formal and rigid separation of public and private realms. Surrogacy contracts both expose this flaw and provide provocation to rethink and perhaps ultimately reconstitute liberalism in terms of different and less inflexible sets of public and private relationships.
This essay is divided into three sections. First, a brief overview of the CLS history of contract law is intended to give some sense of the historical contingency of contract theory. Contract law has changed over time in correspondence with changes in economics and innovations in technology. Yet there has been a certain consistency in the American context. The basic liberal division between public and private life has been sustained. The second section of this essay, utilizes Roberto Unger’s critical framework to argue that the public/private distinction can be reconsidered so as to reformulate conventional contractual relationships, introducing considerations of fairness and equality. Finally, I apply the general analysis of contract theory to the issue of surrogate motherhood. Surrogate motherhood, I argue, has the potential for subverting conventional contract forms because it undercuts the distinction between public and private relationships in very traumatic and graphic ways. Thus, the ana lysis of contract overlaps the analysis of liberalism generally, and the analysis of surrogacy contracts provides a glimpse at the edges of contract law where the solidity of its assumptions is most vulnerable to expose and where, perhaps, the possibility for reconstruction is most likely.