In Re Baby M, 542 A2d 52 (N.J.
Super. Ct. Ch. Div. 1988)
This was a case that, a decade ago forced American society to reevaluate
its moral and ethical standards and placed at the forefront of dispute
the question of what constitute a "parent". This case involved a surrogate
contractual arrangement between William Stern and Mary Beth Whitehead.
It recited that Stern's wife was infertile, that they wanted a child and
that Mrs. Whitehead was willing to provide that child as the mother with
Mr. Stern as the father for a consideration of $10,000. Whitehead was artificially
inseminated with Stern's sperm, she carried the child and once the child
was born decided she wanted to keep the child.
The court found this contract unenforceable because it violated state
statute and went against public policy. The statute prohibited the use
of money in connection with adoptions. This was against public policy because
it allowed parents to decide the custody of the child in advance of birth
and this failed to consider the best interest of the child. The court stated
that this transaction constituted the sale of a child.
The court based its decision on limited information. It acknowledged
that limited information was available and therefore the long-term effects
were not known. However, the court still speculated as to the future effects.
It noted that the child would be impacted when it learned that her life
was bought, that she is the offspring of someone who gave birth to her
only to obtain money. The irony in the court's decision recognizing Whitehead
as the natural mother retaining her rights as a mother and then awarding
visitation rights was to guarantee that the child will be impacted in the
way the court feared she would. When she grows up she will undoubtedly
come to know the circumstances of her birth, whereas had the court enforced
the contract, as is the case with many adopted children, she may never
have been exposed to the circumstances of her birth and could have grown
up in a "traditional", stable family environment.
Brian J. Carney, Where do the Children
Go?-- Surrogate Mother Contracts and the Best Interest of the Child,
22 Suffolk U.L. Rev. 1187 (Winter 1988).
This article defines a "surrogate mother" as a woman who agrees to conceive
through the insemination of sperm, a child, carry the child to term, and
relinquish custody of the child in exchange for money. The article describes
the typical surrogate mother as "a twenty-five year old Christian married
woman with one or more children and a high school education. She is of
lower-middle to middle class in both education and resources. Also some
of the reasons surrogate mothers enter into such arrangements include money,
love of being pregnant, a sentimental or maternal instinct, and a sense
of altruism in the unique ability to help an infertile couple obtain a
child. Additionally, guilt of a previous abortion, guilt of giving a child
up for adoption, may induce a woman to become a surrogate mother."
The article describes the surrogate mother contract as between the surrogate
mother and the biological father, the wife of the biological father not
being a party to the contract in any way. Courts have interpreted such
contracts in accordance with state statutes regarding "baby selling", and
often found them in violation of public policy. However, some courts have
upheld such arrangements as valid contracts interpreting the agreement
as one for the services of the surrogate mother rather than baby selling.
The author concludes that surrogate motherhood is not the answer to
infertility or childlessness because it is one which "potentially exploits
women, or draws class distinctions and encourages the destruction of the
family by permitting women to enter a pregnancy with the preconceived intent
to abandon the child." The author assumes, however, that the family sought
to be protected is that of the woman conceiving the child. What surrogate
motherhood seeks to preserve is the family of the parents who have sought
the services of the surrogate mother. The surrogate is simply carrying
the child and the subsequent relinquishment of her parental rights is hardly
Barbara K. Kopytoff, Surrogate Motherhood:
Questions of Law and Values, 22 U.S.F. L. Rev. 205, (Winter/Spring
This article provides an overview of the responses of several countries
to the issue of surrogate motherhood during the mid to late 1980s, including
the United States, Great Britain, Australia and Canada. Except for the
United States, each country formed commissions to study the issue and those
committees issued opinions.
In the United States, at the time, a number of states proposed statutes
to regulate or ban the practice of surrogate motherhood. In Great Britain,
the committee and medical opinion opposed the practice mainly because of
the danger of commercial exploitation. Australia was also opposed to the
practice on similar moral grounds. In Canada, a commission report recommended
that surrogacy be allowed, subject to government regulation.
The article asserts that surrogate motherhood is medically as practicable
as motherhood by artificial insemination, however the practice "draws swift
condemnation when seen as buying babies. The opinions of the various committees
show that at least throughout the 1980s, several industrialized countries
shared similar views as the U.S. on surrogate motherhood and the problem
of "baby buying."
Johnson v. Calvert, 5 Cal.4th
851 P.2d 776 (1993).
Fifteen years after the Baby M case was decided, the issue of who the
"natural mother" was in a surrogate arrangement was presented to the California
Supreme Court. In this case, Mark and Crispina Calvert wanted to have a
child. Crispina was forced to have a hysterectomy, however, her ovaries
remained capable of producing eggs. The couple considered surrogacy and
one of Crispina's co-workers, Anna Johnson offered to serve as surrogate.
The contract provided that an embryo created by the sperm of Mark and
the egg of Crispina would be implanted in Anna and the child born would
be taken into Mark and Crispina's home "as their child." Anna would agree
to relinquish "all parental rights" to the child in favor of the Calverts,
all in exchange for $10,000 in installments and a $200,000 life insurance
policy on Anna's life.
Anna became pregnant but subsequently the relationship between the two
parties began to deteriorate. Anna sent the Calverts a letter demanding
the balance of payments due her or else she would refuse to give up the
child. The Calverts filed a lawsuit seeking a declaration that they were
the legal parents of the unborn child. Anna filed an action to be declared
the mother of the child. The court, in analyzing the contract, focused
on the intent of the parties and concluded that "even if genetic consanguinity
and giving birth do not coincide in one woman, she who intended to procreate
the child, that is, she who intended to bring about the birth of a child
that she intended to raise on her own, is the natural mother under California
The court correctly noted that gestational surrogacy differs from adoption,
since both parents were the genetic parents and Anna was only the "gestator",
and thus adoption statutes did not apply. This did not constitute payment
for giving up "parental rights", but for services in gestating the fetus,
and undergoing labor. The court was not persuaded that gestational surrogacy
requirements tended to exploit or dehumanize women. It also noted that
there has been no proof that such contracts exploited poor women, or fostered
the attitude that children are mere commodities.
Therefore, gestational surrogate agreements, voluntarily entered into,
should be enforced according to the intent of the parties. The court seem
to be preserving for the intending parties what may be their only means
of procreating a child of their own genes.
Anita L. Allen, The Black Surrogate
Mother: The Socio-Economic Struggle for Equality, 8 Harv. BlackLetter
J.17, (Spring 1991).
The author relates the experience of slaves in early American history
as comparable to surrogacy. She writes that "southern black mothers were
in a sense surrogate mothers because they knowingly gave birth to children
understanding that those children would be owned by others." The author
compares the struggle of black mothers to keep their children to the Baby
M case, in which the surrogate mother fought for custody of the child.
Also, she addresses the unusual case of Johnson v. Calvert in which
an African-American surrogate mother gave birth to the child of European
and Philippine ancestry. The article suggests that "affluent white women's
infertility, sterility, preferences and power threaten to turn poor African-American
women into a "surrogate class." She supports this contention by the court's
ruling in Johnson v. Calvert in favor of the genetic parents, over
the gestator, in direct contravention of a California state statute that
expressly provided that birth mothers are the natural and legal parents
of their offspring.
The author assumes that the Johnson decision was based mainly,
if not entirely, on race. However, the court dealt with several concerns,
including perhaps, but not limited to race. Ultimately, its decision was
based on the child's emotional well being in being in not being awarded
to two mothers.
Beverly Horsburgh, Jewish Women,
Black Women: Guarding Against the Oppression of Surrogacy. 8 Berkeley
Women's L.J. 29 (1993).
The author compares the alienation of Black women to that of Jewish
women. She describes the discrimination that both have suffered acknowledging
that Black women have been severely deprived. The article addresses the
issue of surrogate motherhood as a sexist and racist practice.
The article concludes that the law facilitating surrogacy and discouraging
abortion "are aimed at increasing the white birth rate, while ignoring
socioeconomic conditions decreasing the Black population. The author also
points out that surrogacy encourages the Jewish minority to secure its
survival by exploiting poor Black women."
The author's assertions seem to be based on a plan of the white race
to exploit African Americans. It is probably true to the extent that in
many situations, an affluent white couple will "take advantage" of a poor
African American woman by paying her for her services in carrying a child
for them. This rises to a level of oppression because "their choices are
frustrated in many complex ways." Mainly, they have limited bargaining
power due to their socioeconomic circumstances. Unlike African American
women however, the author states that Jewish women can more easily escape
and assimilate into either the dominant culture or generic feminism. However,
Judaism subordinates women because they have the burden of carrying on
the Jewish faith according to a basic tradition of Judaism, that the mother's
lineage determines whether the child is a Jew.
Karen A. Bussel, Adventures in Babysitting:
Gestational Surrogate Mother Tort Liability, 41 Duke L.J. 661 (1991).
This article considers the scenario of injury resulting to a child being
carried by a gestational surrogate mother during the pregnancy. It provides
the modern view of treating the surrogate mother as the "real mother" during
the pregnancy based on the relationship that develops between the surrogate
mother and the child during pregnancy which is the same as any woman carrying
The author proposes a bright line rule defining liability in order to
avoid conflict and litigation and the potential for psychological harm
to all the parties involved should a surrogate arrangement go awry due
to vague legal rules with indefinite outcomes. "A bright-line rule would
allow for fair, and predictable outcomes."
The article concludes that "disallowing tort actions, for the intended
parents on behalf of the injured child, except in cases of illegal activities
may chill the number of surrogate agreements. Some potential genetic parents
may not want to assume the risk of any potential adverse consequences to
the fetus that result from maternal conduct, however the rearing parents
must recognize that surrogate mothers have fundamental rights of autonomy
and bodily integrity."
The author asserts that surrogate mothers should not be merely "fetal
containers" and that rearing parents assume some risk that she may exercise
her rights in conflict with their interests. This position does not favor
the intended parents' rights to assure a healthy child. Although there
are never any guarantees, the surrogate mother should be held to a high
standard because when she agreed to carry the child she inherently gave
up some of her bodily rights and autonomy. Recognizing such autonomy will
inevitably lead to immunity of surrogate mothers from tort liability in
conflict with the interests of the intended parents.
Scott B. Rae, Ph.D, Parental Rights
and the Definition of Motherhood in Surrogate Motherhood, 3 S. Cal.
Rev. L. & Women's Stud. 219 (Spring 1994).
The article suggests that the issue of parental rights and the commercial
element of surrogacy are the most controversial components of any proposed
position or legislation. He asserts that in order to avoid the potential
conflicts of rights that may arise, legislation should clearly articulate
parental rights. He begins by defining "motherhood" and considers genetics,
gestation and intent, in determining which should determine motherhood.
The article weighs the arguments in favor of and against each possibility,
concluding that based on the "investment" of time and labor in addition
to the contribution to the child's physical growth and sustenance and the
bonding that develops between the surrogate and the child, that gestation
should determine legal motherhood.
The author does not give enough weight to the "intent to parent" as
the determining standard. Allowing gestation to determine legal motherhood
discounts the legally enforceable surrogate agreement, voluntarily entered
into, and explicitly calling for the relinquishment of parental rights
when the child is born in consideration for a specified amount of money.
Alice Hofheimer, Gestational Surrogacy:
Unsettling State Parentage Law and Surrogacy Policy, 19 N.Y.U. Rev.
L.& Soc. Change 571 (1992/1993).
The author argues that policies concerning gestational surrogacy are
unnecessarily restrictive and in some cases unconstitutional. The article
suggests that gestational surrogacy and surrogate motherhood, despite their
commonalities, require different legislative and dispute resolution approaches.
She asserts that this failure is due to the assumption that all surrogates
are entitled to parental rights, and concludes in Part II-A that the genetic
mother, and not the gestator, should be the legal mother of the child.
However, the surrogate should have a lesser right to "some continuing involvement
in the child's life."
The author's position is compatible with the Johnson v. Calvert
decision in which the court awarded "legal mother" status to the intended
mother, rather than the gestational surrogate.
Donna Foote, "And baby makes one: in
a bizarre clash of the law and fertility techniques, Jaycee is a child
without a parent." Newsweek, February 2, 1998.
This article discusses the case of Jaycee, a child who has no legal
parents. The case involved an infertile couple who after several unsuccessful
attempts at reproductive techniques and surrogacy, found a surrogate mother
to have their child. However, neither John, nor his wife, Luanne Buzzanca,
had contributed to the "creation" of the child. She was a product of anonymous
sperm and egg donors and was conceived in a petri dish. A gestational surrogate
with no genetic ties carried the child.
When the couple decided to get a divorce, Luanne filed for child support
but John refused claiming he was not the father. A California Judge agreed,
that under California state law John did not fit the legal definition of
"father" or Luanne of "mother" which lead to the unusual conclusion that
the child had no parents. The author asserts that Luanne could end the
battle by adopting the child but she refuses, insisting the surrogate contract
is valid. An appeals court must now decide.
This case presents yet another unusual outcome when "human frailty meets
reproductive technology." It would be in the best interest of the child
to have legal parents so she does not grow up stigmatized in any way. Knowing
the circumstances of her birth may have a significant psychological impact
as it is. It seems that the surrogate contract describing the intent of
the parties should be enforced so that John and Luanne are declared the
legal parents. This would be in the best interest of the child.
Michael R. Moodie; James Conn; Azizah
Y. alj-Hibri; Michael J. Broyde; Peter J Cataldo; Wael B. Hallaq; Elliott
N. Dorff; Russell E. Smith; William E. May. Symposium on Religious Law:
Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including
... In Vitro fertilization, ..., 16 Loy. L.A. Int'l & Comp. L.J.9
This article addresses several issues from the religious perspective
of Catholicism, Judaism, and Islam. In addition to the question of prenuptial
agreements and abortion, each religion's view on in vitro fertilization
According to the Instruction on Respect for Human Life in its Origin
and on the Dignity of Procreation, which is a magisterial document of the
Catholic church, in vitro fertilization is prohibited because the Catholicism
teaches that procreation should only take place within marriage. "This
precludes all practices of heterologous fertilization, including all techniques
that obtain a human conception artificially by the use of gametes coming
from at least one donor other than the spouses who are joined in marriage.
These procedures include artificial insemination by a donor, heterologous
in vitro fertilization, and surrogate motherhood.
Islam encourages having children "naturally" but allows in vitro fertilization
if it is the last recourse for having children. Judaism is somewhat split
between conservative and liberal Jews. However, most rabbis take a more
liberal position toward artificial insemination, even if accomplished through
a donor. They encourage young Jewish couples to have children any way they
can based on the critical problem of the diminishing number of Jews.
It appears that Catholicism takes the most restrictive view on surrogate
motherhood. This significantly limits the number of children practicing
Catholics can have, since infertile couples would only have the option
Gilbert Meilaender, "Biotech Babies"
Today, Volume 42, Issue 14, Dec.7, 1998.
The article begins by describing several unusual scenarios involving
the use of reproductive technology. The author then presents some of the
arguments couples make for wanting to have children which include: the
desire to experience pregnancy and childbirth, the experience of childrearing,
etc. The author asserts that having a child just to meet our psychological
and emotional needs is not satisfactory. Children should not be thought
of as products, but rather as gifts of God. If however, the infertile couples
want a child "of their own," in the genetic sense, techniques using donated
gametes will not provide it. In any reproductive scenario, other than the
traditional one, the connection to the child is not symmetrical for both
parents. In one scenario, the father may have donated the sperm and the
egg may be from a third party, in which case the "mother" has no (biological)
connection with the child. Similarly, a mother may donate the ovum and
be artificially inseminated by a third party in which case the "father"
has no connection to the child. Furthermore, the author states that even
where both parents contribute the sperm and ovum, moral issues arise when
parents begin to "screen" the embryo considering whether that is the child
that they desire. The author concludes that infertile couples should either
adopt or forego having children through reproductive technology "whatever
This article provides a Christian perspective on reproductive technology.
The authors argument is based on the premise, that couples only want children
for selfish reasons, that is, to fulfill their own psychological desires,
and perceive them as products rather than as a gift from God. If children
conceived in the traditional manner are a gift from God, then allowing
parents to reproduce through alternative means is a blessing from God to
Claudia Kalb, "How Old is too Old?"
Newsweek, May 5, 1997.
This article discusses the problems with postmenopausal women getting
pregnant through reproductive technology. Worldwide, fewer than 100 pregnancies
have been reported in women over fifty. In 1993 a sixty-three year old
woman became pregnant with an embryo created from her husband's sperm and
an anonymous donor's egg. She delivered a normal baby girl and became the
oldest first-time mother.
The author offers different views on older woman having children. According
to one perspective, women are more focused at a later age and able to concentrate
on "motherhood." On the other hand, older parents may not be able to keep
up with the demands of a teenage child. Still others claim that children
of these older parents may worry that their parents may die at any time.
The author concludes that it is unlikely many older couples will seek treatment
Older couples may not have had the opportunity in their youth to have
children. As long as physicians have the ability to reject candidates based
on age and physical condition, it is unlikely senior citizens having children
will be a problem.
Traci Watson, "Sister can you Spare
an Egg?" U.S. News & World Report, June 23, 1997.
This article discusses the commodification of egg donation, or egg "brokerage"
and the psychological effects on the donor, the recipient, and the child.
The author discusses the potential psychological effects on the donor
in not knowing what the child looks like and not being a part of its life,
since donors usually do not even meet the parents. Most however, regard
their eggs as cells rather than future children. The infertile couples,
when offered, usually refuse to speak with the donor. They may find themselves
one day thinking about the donor when they see resemblance to the donor,
since they usually see the donor's face. Also, the parents confront the
dilemma of whether to tell the child the circumstances of his or her birth
may psychologically affect the child when he or she finds out.
The author offers eliminating egg donation as a possible solution and
neither the federal government, nor do most states regulate egg donation.
The potential problems that each party faces are likely outweighed by the
benefit he or she receives. For the donor, the self-satisfaction of providing
a child for an infertile couple as well as the financial reward; for the
infertile couple, a child which they otherwise may not have been able to
have, and for the child, life itself.
Jean Macchiaroli Eggen, The "Orwellian
Nightmare" Reconsidered: A Proposed Framework for the Advanced Reproductive
Technologies. 25 Ga. L.Rev.625 Spring 1991.
The article begins with an overview of the various reproductive techniques
including gamete intrafallopian transfer ("GIFT"); Zygote intrafallopian
transfer ("ZIFT"); cryopreservation; third-party assisted reproduction;
uterine lavage and embryo transfer.
The author then discusses the constitutional right to reproductive privacy.
He asserts where the Supreme Court has recognized a fundamental right to
human reproductive choices under the right of privacy of the Bill or Rights.
Although the Court has only addressed the issue within the context of coital
reproduction, "valid reasons exist to assume that the rights expressed
in that context would extend to noncoital reproduction." For example, "recognized
interests in marriage and procreation transcend the specific means by which
the gametes are united." Also offered in support is a Court of Appeals
decision that supports a woman's fundamental right to privacy in her right
to make reproductive choices without governmental interference with those
The author then addresses the existing regulation stating that governmental
regulation has taken an "ad hoc approach, addressing specific narrow problems
as they arise rather than focusing on the broader issues raised by the
technologies and their logical consequences." He concludes by suggesting
a regulatory framework for determining whether regulation of the advanced
reproductive technologies is appropriate. This approach calls for a regulatory
scheme that lies "between the extremes of heavy-handed governmental oversight
and laissez-faire inattention." This method involves three factors. First
the "problem experience rating" of the activity to be regulated. This requires
lawmakers to collect information on the frequency and urgency of problems
arising form the subject of the regulation to determine the state's interest
in warranting regulation. The second factor relates to the level of equilibrium
in the activity sought to be regulated. That is, avoiding obsolete, vague
or ineffective legislation for techniques soon to be abandoned or replaced.
The last factor calls for "analysis of any existing governmental or self-regulation
with respect to the activity sought to be regulated." This requires analyzing
the effectiveness of existing legislation.
From a legislative perspective, a moderate approach to dealing with
such a pressing issue is usually best because it takes into account a broad
range of perspectives and interests. This approach seems more flexible,
practical and not ad hoc, like current self-regulation and state regulation.
Brent Parker Smith, Anna J. v. Mark
C: Proof of the Imminent Need for Surrogate Motherhood Regulation,
30 J. Fam. L. 493 (1991/1992).
The article discusses the growing demand for reproductive technology
and especially for surrogate motherhood arrangements. The author suggests
that existing state statutory laws have placed restrictions on commercial
surrogacy when in fact surrogacy arrangements rarely present complications.
After an overview of the Baby M and Johnson cases, he concludes
that there were no "winners" in those cases and then ends with "an evaluation
of the imminent need for the regulation of surrogacy."
The author suggests that because surrogate arrangements rarely present
problems, "surrogacy can be a viable, successful alternative for the ever-increasing
infertile population. Some states such as New Hampshire, recognizing that
surrogacy arrangements will take place anyway, passed legislation regulating
the practice(2). Arkansas passed
legislation regulating commercial surrogacy.
The author proposes that states recognize the legal legitimacy of surrogate
contracts; that legislation define who is eligible to participate in such
arrangements; that the law require valid agreements to provide adequate
medical and psychological care for all participating parties; that the
law stipulate the procedure for curing a breach; and address the legality
of surrogacy for pay. This is a reasonable proposal that regulates rather
than prohibits surrogacy arrangements, decreasing the probability of black
market arrangements. Of course, state legislatures will have to customize
the legislation according to the demands of their constituents.
Carol Winkelreid. "The fertility gods"
Exposure. Vol.24 No.2 (Summer 1996).
The article discusses egg donation procedures at the University of North
Carolina at Chapel Hill. In addition to describing the success rates an
UNC and other institutions providing such services for infertile couples,
the author focuses on the ethical obligations of informing donors of the
risks of ovarian cancer. Donors take fertility drugs that cause ovaries
to produce five to thirty eggs in a menstrual cycle instead of one or two.
"The more a woman ovulates, the greater the risk of cancer." Some feel
that due to the high risk involved, doctors should get as thorough informed
consent as possible and currently the risks involved are inadequately explained
to potential donors.
The author asserts that this may be due to the threat to the success
of the program because of fewer donors. However, there may be other reasons
since the program lost money last year.
The donor's health should not be placed at risk for the success of the
egg donor programs. Just like any medical procedure, the "patient" should
be well informed of the procedure involved and the potential risks.
"The Baby Express" The Fact Sheet,
The article discusses reproductive technology from the sociological
perspective. It focuses on the broader societal concern of population control.
Statistics presented show that since 1978, 50,000 babies have been born
from medically assisted reproductive technologies, and 60,000 through artificial
insemination, compared to 4 million babies born in the United States each
year. The article suggests that although the effect of these numbers on
population is symbolic, there is a need to balance prevention and promotion
of births. It further provides that the federal government provides five
times the amount of funding to reproductive sciences than contraceptive
research. Therefore, more is done to help infertile couples than to promote
contraception. "While new ways to create lifer are being discovered, many
children are still born unwanted and in poor health. And more than one
in five children in the U.S. live in poverty." The author concludes that
"the issue is one of priorities and that there is a greater need for contraceptives
than for finding new and different ways to make babies."
Although there currently does not seem to be a problem with population
control, at least in the United States, the author raises a valid issue.
Our priorities should be to address the problem that currently exists,
helping children currently in "distress". The fascination with scientific
research and reproductive technology removes orphans and those children
living in poverty from the picture. Still, couples who desire to have a
child of "their own" should not be limited in their choices of reproduction.
They are also unlikely to sacrifice their ability to have a child of their
own for the greater benefit of society. Therefore, contraception should
receive the same support as reproduction.
Victoria L. Fergus, An Interpretation
of Ohio Law on Maternal Status in Gestational Surrogacy Disputes: Belsito
v. Clark, 644 N.E. 2d 760 (Ohio C.P. Summit County 1994).
This article discusses the Belsito case and addresses the issue
of legal maternal status in gestational surrogacy under the Ohio Parentage
Act. It then explores four tests used to establish maternity concluding
that the "intent" test is the best method.
In Ohio, the case of first impression dealing with this issue was Belsito
v. Clark. In that case, an infertile couple Anthony and Shelly Belsito
sought Shelly's sister, Carol to act as the gestational surrogate of their
child. Anthony contributed the sperm and Shelly the eggs. When Shelly contacted
the local hospital regarding the birth certificate, the hospital informed
her that under Ohio law, the birth mother would be listed as the legal
mother and the child would be listed as illegitimate because the birth
mother and the genetic father were not married. The court used the "genetic
test" and concluded that Anthony and Shelly were the legal and natural
parents of the unborn child. The author concludes that the "intent test"
is the most appropriate test to apply in situations of gestational surrogacy.
The article suggests that the Ohio Parentage Act does not apply to surrogacy
cases at all. Applying the statute to a gestational surrogacy would lead
to an absurd definition of the natural mother. Both the birth mother and
genetic mother would have maternal rights. Thus, the author concludes the
current Ohio law is inapplicable to gestational surrogacy. As the Belsito
court noted, "until the legislature addresses the issue, the answers to
gestational surrogacy questions lie not in direct interpretation of Ohio
statutory law, but in common law.
The author reasonably concludes that the "intent" test is most appropriate
under common law. It can be applied most consistently because it "resolves
the parental question in favor of those who affirmatively seek to bring
a child and to rear that child in this world." Therefore, the legislature
should favor the intent test when it addresses the gestational surrogacy
Dorothy Wertz, "Surrogate Motherhood":
Current Status. The Gene Letter. vol.2, Issue 2, (March 1998).
The author suggests that currently surrogacy is legal in about half
the states. A few states, including Michigan, New Hampshire, New York,
and Virginia, have made commercial surrogacy a criminal act. In Michigan,
arranging a surrogacy is a felony punishable by five years in prison and
up to $50,000 in fines. In addition, the surrogate mother may be charged
with a misdemeanor, subject to a year in prison and $10,000 in fines. The
United Kingdom, France, Germany and Australia have all forbidden commercial
The article suggests that states have chosen what is best for their
citizens and consequently half have legalized surrogacy while half have
Code of Virginia, Title 20 Domestic
Relations, Chapter 9. Status of Children of Assisted Conception.
Sec. 20-165 makes it unlawful for any person, firm, corporation, partnership
or other entity to accept compensation for recruiting surrogates to enter
into surrogacy contracts. A violation is punishable by a Class 1 misdemeanor.
Further, it is unlawful to act as a surrogate broker. This statute makes
commercial surrogacy a criminal act.
"Being Surrogates" Surrogate Motherhood.
This web site discusses how people may respond negatively to surrogate
mothers when they see them pregnant and then afterward without any newborns.
Also, surrogates are often forced to explain their situation and it may
be difficult for others to understand the situation.
It is only natural that one would expect a pregnant woman to have newborns
with her when she delivers. The more frequent surrogate motherhood becomes,
however, the less likely it is people will ask such questions.
Susan S. Fricks, M.S., TASC: "A Successful
Surrogate Arrangement" (1996). http://www.surrogacy.com/psychres/article/surrsucc.html
This article provides the recommendations of a psychotherapist who has
worked in the field of assisted reproductive technology and who had a five-year
personal struggle with infertility. She recommends that the couple and
the surrogate have chemistry. It is important to have a good relationship
so that the surrogate joins the couple in their quest for a child and the
couple "entrust themselves to commit to a surrogate. Next, the decision
to make the surrogacy arrangement should be a mutual decision of the couple
and at a time that is most convenient for the surrogate ( during vacation,
between jobs, etc.). Further, all three must reconcile their beliefs with
the stance of the religion that they follow. They must be confident in
their decision and able to deal with negative reactions by others. In addition,
an attorney who has written surrogate contracts is essential. A surrogate
who has had a successful pregnancy before is the best candidate. She will
know what a pregnancy entails. Last, the surrogate needs the support of
those closest to her since they will be the one's most directly affected.
As the author acknowledges, these recommendations are not exhaustive, however,
most probably need to be there.