Coupled with modern reproductive technologies, the ancient desire for parenthood has led to novel legal challenges. This essay discusses landmark cases addressing those challenges. At the outset, it distinguishes between two litigation paradigms in this area—termed “horizontal” and “vertical.” Horizontal controversies involve private parties who have different aspirations regarding a joint parenthood project (e.g., between two partners who began an IVF procedure and later disagree whether to complete the process). In contrast, vertical controversies concern clashes between an individual (or individuals) and the state, such as when the state or one of its authorities does not allow the individual to move forward with technologies that may lead to parenthood (e.g., new surrogacy procedures), though all affected individuals consent. The essay then focuses on horizontal litigation, and examines the ways in which various legal systems draw on, and sometimes adjust to the particular circumstances of the case, traditional concepts such as contract, reliance, property, and more to resolve such disputes.
Daphne Barak-Erez, IVF Battles: Legal Categories and Comparative Tales, 28 Duke Journal of Comparative & International Law 247-272 (2018)
Available at: https://scholarship.law.duke.edu/djcil/vol28/iss2/2