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THE CHANGING FACE OF REPRODUCTIVE TECHNOLOGY:
SURROGATE MOTHERHOOD
Annotated Bibliography

NADEEM QURAISHI***
2nd Year Law Student
The University of Dayton School of Law
Fall 1998

Introduction

What is the goal of the human race? Science tells us, the goal of the human race is essentially the same as that of a basic human cell. Survival! If the ultimate goal of humanity is survival, then this necessarily means reproduction. Humans can only survive if they continue to reproduce. However, should this reproduction be through only "natural" means? What about couples who are not able to reproduce? That is, either the male or the female is sterile? Is that the end of the story for them? In an instant, a couple's dreams of having a family, raising children and having someone to take care of them when they get older, can be shattered, not through any fault of their own. Is this fair? Under these circumstances, the couples who want to have children have only a few options. They can choose not to have children, they can adopt, or they can take advantage of reproductive technology and have a child through assisted reproductive methods. The legal, moral and religious implications of undertaking such a task are many. 

First, some argue that the Constitution implicitly provides a right to procreate. Others claim that where this right is not explicit, it should not extend to reproductive technology. Furthermore, the law often cannot adequately deal with questions such as what constitutes a "parent", that have traditionally been defined in biological terms. Cases over the past ten years have forced the courts to address the issue whereas courts are reluctant to "make law" and prefer to leave such decisions to the legislatures. Consequently, legislatures have had to face the challenge of regulation and about one-half have not adequately addressed the issue. 

This "altering" of nature has given rise to moral and religious questions as well. Is it against the laws of nature to produce a child in a laboratory? Most of the reproductive techniques involve means other than traditional procreation. Also, is commercial surrogacy the "selling of babies?" From a conservative social perspective, assisted reproductive techniques involve the commodofication of babies, since gestational surrogate contracts usually involve payment to the gestational surrogate in exchange for carrying the child for an infertile couple. 

From the religious perspective, some religions do not permit reproduction through means other than natural procreation because a child is seen as a "gift" from God rather than a fulfillment of a couple's psychological needs. Others allow assisted reproduction methods as a last resort for infertile couples and still others encourage such means in order to benefit the population of its adherents.

Next, assuming a couple chooses assisted reproductive methods to have a child, problems may arise if the arrangement between the parties, in a surrogacy contract, for example, go awry. Who is legally entitled to keep the child? Who is the mother? Who is the father? What rights does each possess? Further, assuming the parties have no contractual conflicts but the child is born with some birth defect. Should the surrogate mother by liable for tort? Should it matter whether she abused drugs during her pregnancy? Should the child have a tort claim against the surrogate? Legislation addressing these issues seems to be lacking in most states. 

This annotated bibliography provides an overview of surrogate motherhood by presenting arguments in favor of and against surrogate motherhood, and similar reproductive practices. It will explore the role of the law in determining what constitutes a "parent" and what his or her rights and obligations are to the child; the rights of the surrogate mother in terms of the child, and the child's rights. This annotated bibliography will also provide the religious perspective from the Christian, Catholic, Jewish, and Islamic points of view. Additionally, ethical issues will be addressed as well as the role of courts and legislatures in addressing these issues. The constitutional issues of the right to privacy and the right to procreate will also be explored. Finally, proposed framework for effective legislation and facts and statistics related to infertility and surrogate motherhood, and components of a successful surrogate arrangement are included. After reading this annotated bibliography a reader should have a better understanding of surrogate motherhood and issues associated with it, based on a broad range of perspectives.

 

The following articles are included in this bibliography:
In Re Baby M, 542 A2d 52 (N.J. Super. Ct. Ch. Div. 1988)

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).

Barbara K. Kopytoff, Surrogate Motherhood: Questions of Law and Values, 22 U.S.F. L. Rev. 205, (Winter/Spring 1988).

Johnson v. Calvert, 5 Cal.4th 84, 851 P.2d 776 (1993).

Anita L. Allen, The Black Surrogate Mother: The Socio-Economic Struggle for Equality, 8 Harv. BlackLetter J.17, (Spring 1991).

Beverly Horsburgh, Jewish Women, Black Women: Guarding Against the Oppression of Surrogacy. 8 Berkeley Women's L.J. 29 (1993).

Karen A. Bussel, Adventures in Babysitting: Gestational Surrogate Mother Tort Liability, 41 Duke L.J. 661 (1991).

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).

Alice Hofheimer, Gestational Surrogacy: Unsettling State Parentage Law and Surrogacy Policy, 19 N.Y.U. Rev. L.& Soc. Change 571 (1992/1993).

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.

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 (November 1993).

Gilbert Meilaender, "Biotech Babies" Christianity Today, Volume 42, Issue 14, Dec.7, 1998.

 Claudia Kalb, "How Old is too Old?" Newsweek, May 5, 1997.

Traci Watson, "Sister can you Spare an Egg?" U.S. News & World Report, June 23, 1997. 

Jean Macchiaroli Eggen, The "Orwellian Nightmare" Reconsidered: A Proposed Framework for the Advanced Reproductive Technologies. 25 Ga. L.Rev.625 Spring 1991. 

Brent Parker Smith, Anna J. v. Mark C: Proof of the Imminent Need for Surrogate Motherhood Regulation, 30 J. Fam. L. 493 (1991/1992). 

Carol Winkelreid. "The fertility gods" Southern Exposure. Vol.24 No.2 (Summer 1996). 

"The Baby Express" The Fact Sheet, (August 1994).

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).

Dorothy Wertz, "Surrogate Motherhood": Current Status. The Gene Letter. vol.2, Issue 2, (March 1998). http://www.geneletter.org/0398/Surrogate.htm

Code of Virginia, Title 20 Domestic Relations, Chapter 9. Status of Children of Assisted Conception.

"Being Surrogates" Surrogate Motherhood. (Nov.1997). 

http://new.mpr.org/features/199711/20_smiths_fertility/part4/sidebar1.shtml

Susan S. Fricks, M.S., TASC: "A Successful Surrogate Arrangement" (1996). http://www.surrogacy.com/psychres/article/surrsucc.html
 


The University of Dayton School of Law


Nadeem Quraishi is a second-year law student at the University of Dayton School of Law in Dayton, Ohio. He graduated from Indiana University with a B.A. in Political Science. Upon graduation from the University of Dayton School of Law, he will practice in Kentucky.
Send questions and comments to:
Professor Vernellia R. Randall

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since  April 30, 1999.


ANNOTATIONS

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. (1)

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 abandonment.



Barbara K. Kopytoff, Surrogate Motherhood: Questions of Law and Values, 22 U.S.F. L. Rev. 205, (Winter/Spring 1988).

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 84, 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 law. 

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 a child. 

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 (November 1993).

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 is provided.

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 to adopt.



Gilbert Meilaender, "Biotech Babies" Christianity 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 the cost."

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 infertile couples.



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 for infertility.

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 choices. 

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" Southern 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, (August 1994).

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 issue.



Dorothy Wertz, "Surrogate Motherhood": Current Status. The Gene Letter. vol.2, Issue 2, (March 1998). http://www.geneletter.org/0398/Surrogate.htm

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 surrogacy.

The article suggests that states have chosen what is best for their citizens and consequently half have legalized surrogacy while half have not. 



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. (Nov.1997).
http://new.mpr.org/features/199711/20_smiths_fertility/part4/sidebar1.shtml

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. 



ENDNOTES

1. In re Baby M, 217 N.J. Super. 313,372, 52 A.2d 1128, 1159 (1987).

2. N.H. Rev. Stat. Ann. Sec.168-15 (1990).
 
 

 


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Contact Information:
Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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 03/10/2010

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