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Surrogate Motherhood

From lawbrain.com

A relationship in which one woman bears and gives birth to a child for a person or a couple who then adopts or takes legal custody of the child; also called mothering by proxy.

In surrogate motherhood, one woman acts as a surrogate, or replacement, mother for another woman, sometimes called the intended mother, who either cannot produce fertile eggs or cannot carry a pregnancy through to birth, or term.

Surrogate mothering can be accomplished in a number of ways. Most often, the husband's sperm is implanted in the surrogate by a procedure called artificial insemination. In this case, the surrogate mother is both the genetic mother and the birth, or gestational mother, of the child. This method of surrogacy is sometimes called traditional surrogacy.

Less often, when the intended mother can produce fertile eggs but cannot carry a child to birth, the intended mother's egg is removed, combined with the husband's or another man's sperm in a process called in vitro fertilization (first performed in the late 1970s), and implanted in the surrogate mother. This method is called gestational surrogacy.

Surrogacy arrangements are categorized as either commercial or altruistic. In commercial surrogacy, the surrogate is paid a fee plus any expenses incurred in her pregnancy. In altruistic surrogacy, the surrogate is paid only for expenses incurred or is not paid at all.

The first recognized surrogate mother arrangement was made in 1976. Between 1976 and 1988, roughly 600 children were born in the United States to surrogate mothers. Since the late 1980s, surrogacy has been more common: between 1987 and 1992, an estimated 5,000 surrogate births occurred in the United States.

The issue of surrogate motherhood came to national attention during the 1980s, with the Baby M case. In 1984 a New Jersey couple, William Stern and Elizabeth Stern, contracted to pay Mary Beth Whitehead $10,000 to be artificially inseminated with William Stern's sperm and carry the resulting child to term. Whitehead decided to keep the child after it was born, refused to receive the $10,000 payment, and fled to Florida. In July 1985, the police arrested Whitehead and returned the child to the Sterns.

In 1987 the New Jersey Superior Court upheld the Stern-Whitehead contract (in re baby m. 217 N.J. Super. 313, 525 A.2d 1128). The court took all parental and visitation rights away from Whitehead and permitted the Sterns to legally adopt the baby, whom they named Melissa Stern. A year later, the New Jersey Supreme Court reversed much of this decision (In re Baby M., 109 N.J. 396, 537 A.2d 1227). That court declared the contract unenforceable but allowed the Sterns to retain physical custody of the child. The court also restored some of Whitehead's parental rights, including visitation rights, and voided the adoption by the Sterns. Most important, the decision voided all surrogacy contracts on the ground that they conflict with state public policy. However, the court still permitted voluntary surrogacy arrangements.

The Baby M. decision inspired state legislatures around the United States to pass laws regarding surrogate motherhood. Most of those laws prohibit or strictly limit surrogacy arrangements. Michigan responded first, making it a felony to arrange surrogate mother contracts for money and imposing a $50,000 fine and five years' imprisonment as punishment for the offense (37 Mich. Comp. Laws § 722.859). Florida, Louisiana, Nebraska, and Kentucky enacted similar legislation, and Arkansas and Nevada passed laws permitting surrogacy contracts under judicial regulation.

In 1989 the American Bar Association (ABA) drafted two alternative model laws involving surrogate motherhood. These laws are not binding but are intended to guide states as they formulate their own laws. One legalizes the practice of surrogate motherhood and makes surrogacy contracts enforceable in court; the other bars the enforcement of contracts in which a surrogate mother is paid to have a child and then give up any claim to the child.

Under either ABA model, states legalizing surrogate contracts limit them to agreements between a surrogate mother and a married couple. A genetic link must be established between the couple and the child, by the husband's supplying sperm or the wife's contributing an egg, or both. To be valid, the contract must be approved by a judge before conception takes place, and it must be accompanied by proof that the wife is unable to bear a child. The surrogate mother has the right to repudiate the contract up to 180 days after conception, in which case she may keep the child. If she does not repudiate the contract during that time, the couple becomes the child's legal parents 180 days after conception.

In 1993 the California Supreme Court issued a landmark ruling declaring surrogacy contracts legal in California. The case, Johnson v. Calvert, 5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P.2d 776, involved a surrogacy contract between a married couple, Mark Calvert and Crispina Calvert, and Anna L. Johnson. Crispina Calvert was unable to bear children. In 1990 the Calverts and Johnson signed a surrogacy contract in which the Calverts agreed to pay Johnson $10,000 to carry an embryo created from the Calverts' ovum and sperm. Disagreements ensued, and later that year, Johnson became the first surrogate mother to seek custody of a child to whom she was not genetically related.

After the child's birth, the Calverts were awarded custody. Johnson appealed the decision. The state supreme court finally upheld the legality of surrogacy contracts under both the state and federal constitutions. The court held such contracts valid whether or not the surrogate mother provides the egg. The U.S. Supreme Court declined to hear Johnson's appeal.

In many states, surrogacy contracts are considered unenforceable because of existing adoption laws designed to discourage "baby selling." These laws may, for example, forbid any consent to adoption given prior to the birth of the child. They may also make it illegal for a birth mother to receive payment for consenting to give up a child or for an intermediary or broker to receive a fee for arranging an adoption. In states with these laws, a surrogate mother who wishes to keep the child rather than give it up for adoption may successfully challenge an already established surrogacy contract.

Laws concerning artificial insemination can also conflict with surrogacy agreements. Some states have laws maintaining that semen donors are not legally the fathers of children created with their sperm. These laws were originally designed to facilitate the development of sperm banks. In a surrogacy arrangement, they conflict with an attempt to adopt the surrogate child. Increasingly, states are drafting laws that clarify the legal status of surrogacy arrangements, including who is the rightful parent of a child born through surrogate mothering.

State laws differ in the way they handle surrogate motherhood contracts. Most state laws on the issue are designed to prevent or discourage surrogacy. Four states (Florida, Nevada, New Hampshire, and Virginia) specifically allow surrogacy contracts under certain conditions. Several other states (Arizona, Indiana, Louisiana, Michigan, Nebraska, New York, North Dakota, and Tennessee) specifically prohibit surrogacy contracts as void and in violation of public policy. In some states (Kentucky, Michigan, Utah, and Washington, as well as the District of Columbia) entering into a surrogacy contract or assisting in procuring such a contract is a criminal act, punishable by fine, imprisonment, or both.

State laws likewise vary in the way they handle disputes over custody. Surrogacy laws in Michigan and Washington make custody determinations on a case-by-case basis, attempting to reach the decision that best serves the interests


of the child. In New Hampshire and Virginia, such laws presume that the contracting couple are the legal parents but give the surrogate a period of time to change her mind. In North Dakota and Arizona, the surrogate and her husband are the legal parents of the child.

The commissioners on uniform laws created a stir when it amended the Uniform Parentage Act to authorize gestational agreements as valid contracts. According to the prefatory note to the uniform act, the commissioners determined that such agreements had become commonplace during the 1990s, so the law was merely designed to provide a legal framework for such agreements. However, several organizations have decried the inclusion of these provisions. As of 2003, two states, Texas and Washington, had adopted the new uniform act, while legislatures in four other states were considering its adoption.

Further Readings

Andrews, Lori B. 1995. "Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood." From the symposium New Directions in Family Law. Virginia Law Review 81 (November).

Birck, Mary Lynne. 1994. "Modern Reproductive Technology and Motherhood: The Search for Common Ground and the Recognition of Difference." University of Cincinnati Law Review 62 (spring).

Cumming, Jennifer L. "The Proposed Uniform Parentage Act and Surrogate Motherhood." Minnesota Family Council. Available online at <http://www.mfc.org/resources/backgrounders/UniformParentage.html> (accessed August 27, 2003).

Hall, Mark A., Mary Anne Bobinski, and David Orentlicher. 2003. Health Care Law and Ethics. 6th ed. New York: Aspen.

Havins, Weldon E., and James J. Dalessio. 2000. "Reproductive Surrogacy at the Millennium: Proposed Model Legislation Regulation 'Non-Traditional' Gestational Surrogacy Contracts." McGeorge Law Review 31 (spring)

Larkey, Amy M. 2003. "Redefining Motherhood: Determining Legal Maternity in Gestational Surrogacy Arrangements." Drake Law Review 51 (March).

Macklin, Ruth. 1994. Surrogates and Other Mothers: The Debates over Assisted Reproduction. Philadelphia: Temple Univ. Press.

Ohs, Alayna. 2002. "The Power of Pregnancy: Examining Constitutional Rights in a Gestational Surrogacy Contract." Hastings Constitutional Law Quarterly 29 (winter).

Rae, Scott B. 1994. The Ethics of Commercial Surrogate Motherhood: Brave New Families? Westport, Conn.: Praeger.


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