Surrogacy: The International and Domestic Legal Implications
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SURROGACYBy: Christopher Gasper
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PART I: INTRODUCTION
We have entered a new age. A relativity new and exciting area of reproductive
technological advancement, which has been encountering challenges, is Assisted
Reproductive Technology (³ART´). ART refers to ³any medical means of aiding human
reproduction.´1 ART has been developed to help individuals and infertile couples to
conceive children, usually through medical and other untraditional procedures.2 The
most common types of assisted reproduction are: in vitro fertilization, sperm donation,
egg donation, and surrogate parenting arrangements (the main focus of this paper).
3
Rarely in modern society does there exist such a moral uncertainty more obvious,
and more complex, than in the area of surrogacy. Surrogacy, however, is so recent that
state courts and lawmakers continue to discuss, define and rule on its many nuances.
While the debate has been vigorous with regards to surrogacy, the discussion has reached
neither a consensus nor a satisfactory resolution to the complex moral, legal, and social
issues raised by surrogacy. Since surrogacy can become more than just a safe and
effective alternative to human reproduction, it should be defined and protected under law
so that the option of surrogacy can be made possible through a legally binding contractual
agreement between adoptive parent(s) and a surrogate mother. Unfortunately, there
doesn¶t seem to be a single legislative position that can possibly accommodate all the
competing views or solve the moral dilemmas.
Here, the combination of domestic and international legal environments,
technological development, and differing types of societal acceptable family structures
deals a huge blow to that of the traditional family. Arguably for some people, the demise
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of µnormal¶ family values in the Western World is a factor towards the argument against
the surrogacy pregnancy option for many individuals and couples. For the legal
community, issues stemming from conflicts between adoption law, family law, contract
law, and tort law tend to make surrogacy a challenging and quite limited option for most.
In the absence of clear regulations and statutes, surrogacy risks prohibition (as seen in
some states and countries around the world) which could lead to surrogacy going
µunderground.¶ If surrogacy did flourish as a criminal activity, money would become the
focal point of the transaction as it did with alcohol during the 1920s in America, Russian
weapons on the black market after the fall of the USSR, and even abortion before Roe v.
Wade. The risk for abuse and exploitation of women and the commercialization of
babies, the two greatest risks of surrogate motherhood, could become realities.
Furthermore, while there is a global push to celebrate diversity, there still exists a
resistance to a possible solution to the most unfortunate timeless problem of childless
parents seeking witch doctors and jungle cures for their reproduction concerns. However,
a real alternative solution does exist which does allow for would-be parents a chance to
be able to enjoy the most miraculous and wondrous event on Earth: Life. Surrogacy is
that solution rendering a safe alternative for these would-be parents. However, surrogacy
is a problem for most societies because it forces us to rethink our values and the very
basis of those values. As with most moral choices, there is not one right choice. In the
US, it is the state¶s obligation to provide guidance and protection with surrogacy, both
before the arrangement is finalized and afterwards. However, just like with abortion, the
state should not make the choice for individuals. Ultimately, there are persons with
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different ideals and concepts of morality who must be allowed to make a fully informed
choice and also to be required to take responsibility for their actions.
So, is surrogacy right ? How should laws be shaped and enforced when conflicts
arise from surrogacy parenting agreements? Will a society create a black market for
babies if the law remains silent on the issue or bans it all together ? How can legislature
protect the intended parents, the child, and the surrogate mothers from exploitation,
disappointment, and loss? In order to better answer these questions, we will first look at
how surrogacy is defined. Then we will discuss the motivations of people to enter into
surrogacy arrangements followed by an analysis of law and public policy. Finally, the
conclusion is that surrogacy is a good option for infertile couples and proper attention to
both domestic law and international law needs to be paid to stem off the creation of a
black market for surrogacy. Overall, surrogacy, like abortion, should be a choice for
people to make and proper law should be in place to protect all parties involved.
PART II: Definitions, types of, medical procedures
Surrogacy generally refers to an arrangement (or contract) ³in 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.´4 There are several medical procedures available to a surrogacy
arrangement. Most commonly sperm is implanted into the surrogate mother by Artificial
Insemination. This method is commonly referred to as traditional surrogacy. If the
adoptive mother shares her DNA with the embryo, than that is a gestational surrogacy
which refers to when a fertilized embryo, to which the surrogate mother shares none of
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her DNA, is implanted into the uterus of the surrogate mother. The egg comes from a
donor and the sperm is injected into the egg through the process of ICSI
(Intracytoplasmic sperm injection). Injecting the sperm into cytoplasm of the oocytes to
allow fertilization is called In vitro fertilization.5 If the surrogate mother receives
compensation for the act of carrying and delivering the baby, except for reasonable
expenses such as medical and nutrition, the surrogacy is considered a commercial
surrogacy.6 When the surrogate mother does not receive any compensation for the act of
surrogacy other than reasonable expenses, then the surrogacy is referred to as an altruistic
surrogacy.
7
Even with these basic categories, surrogacy can become even more
complicated when the child has five parents: the egg donor, the sperm donor, the
surrogate mother, the adoptive father, and the adoptive mother. The complex nature of
surrogacy makes creating clear cut legislation challenging at best.
PART III: Motivations of the Adoptive parents and the Surrogate Mother
Society, whether past or present, believes that the family plays an essential role in
creating and socializing future citizens. Reproductive issues, practices, and policies are
central to how nations view themselves and their prospects for the future. Societal
pressures ensue upon couples to thus produce children and the intensity of those
pressures can increase for a childless couple. Infertility is not a new topic and science
has worked endlessly to find solutions. Since 1995, there has been ³a substantial revision
(upward) in the number of infertile women.´8 Furthermore, not every case of infertility
is curable. As many as 1 out of 5 couples diagnosed with infertility eventually become
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pregnant without medical treatment. ³More than half of couples with infertility become
pregnant after treatment, not including advanced techniques such as in vitro fertilization
(IVF).´9
There are, from advances in medical science, clear and reasonable steps that
people can take to tackle the physical causes of infertility, however less is done to address
the emotional and social pain of infertility. To the extent that the pain is caused by a
sense of failure to achieve conception or to the extent that the pain is due to the absence
of the experience of raising and nurturing a child, we must recognize that there exists
many powerful motivations for people to seek alternatives to traditional and natural forms
of bringing a child into their lives. The traditional forms have been adoption, foster care,
step-parenthood, and other less formal arrangements. The non-traditional alternative is
surrogacy.
Even with infertility aside, some people in society seeking a child may want a
child of their own without the hassle of dealing with the physical 9 month gestation
period followed by actual birth.10 Whether this decision is factored on by pain,
discomfort, risk, or even physical deformations (stretch marks, excessive weight, scarring,
etc), it is clear that traditional methods may not be ideal for everyone. Gay couples and
single people are emerging as a new group of adoptive parents seeking surrogacy as a
solution to their dilemma. The benefit surrogacy offers gay couples and single parents
over adoption, foster care, and step-parenthood is that the child will carry their very own
DNA. Surrogacy becomes a more favorable option when you couple this with the fact
that adoptions in the US have on average a 3-5 year wait. 11 It is no wonder why some
people are motivated to pursue surrogacy over other methods when modern science fails
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to cure infertility and other traditional methods are too costly12 and carry a lengthy wait
schedule.
There is very little research available concerning the motivation of woman to
become a surrogate mother. The American Journal of Psychiatry, however, uncovers
three motivating factors.13
One of the factors is the enjoyment a mother has of the
pregnancy itself. 14 Of prospective surrogate mothers questioned, a majority indicated a
sense of contentment, attractiveness, and an enjoyment of the attention given to them
during pregnancy. 15 Further still, some participants of the study made comments
indicating their absolute enjoyment of being pregnant.
16
A second factor of the
motivation of surrogate mothers found by the study in the American Journal of
Psychiatry was that some surrogate mothers felt that the act of giving a child to a
childless couple would help them to master unresolved feelings caused by the loss of a
baby whether voluntarily or involuntarily. 17
Finally, the last motivation discovered is that many surrogate mothers are
motivated by economics. A large majority of women interviewed (89%) indicated that
they would require a fee of at least $5,000 to participate in a surrogacy arrangement. 18
Despite this majority, economics, however, were not the sole reason as indicated during
this study for a woman to want to be a surrogate mother. 19 (Dr. Franks claims that the
motivation of surrogates ³seem[s] to be an interesting mixture of financial and altruistic
factors.´). Women who either wanted to become or who optioned to become surrogate
mothers did so for more than just one reason.
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PART IV: General Description and US Law
Surrogacy is usually chosen by an infertile couple, gay couple, or a single person
because it allows those people a chance to have a child without the wait time of adoption
and to have a child that shares the DNA of at least one, if not both, of the intended
parents. Generally, the intended parents will enter into a contract with the surrogate
mother who will agree to carry and deliver a child for them. 20 As noted above, there are
many different types of surrogacy arrangements.
Regardless of the type of surrogacy chosen, both parties may enter into a contract
to define the terms of the arrangement called a surrogate parenting agreement. A
surrogate parenting agreement is ³an agreement between a person (the intentional parent)
and a woman (the surrogate mother) providing that the surrogate mother will (1) bear a
child for the intentional parent, and (2) relinquish any and all rights to the child.´ 21 The
surrogate parenting agreement specifies terms of the contract such as payment of medical
expenses, fees for surrogacy service, frequency of medical exams, limitations on diet
(including but not limited to drug intake, vitamin supplements, alcohol and tobacco
absence, etc), termination of surrogate mother¶s parental rights, child support dealings,
and dispute resolution, for example.
In the United States, the legality issue of surrogacy is handled by state law in a
variety of ways. Some states have enacted statutes which allow for legally binding
surrogacy agreements that the parties to the contract must satisfy by performance.
Florida, Illinois, Nevada, New Hampshire, and Virginia permit the formation and
enforcement of surrogate agreements and regulate these agreements.22
Alabama,
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Arkansas, Iowa, and West Virginia have exempted surrogacy agreements from criminal
punishment. 23 Arizona, the District of Columbia, Indiana, Michigan, New York, North
Dakota, and Utah have declined to enforce surrogacy agreements as void and
unenforceable as against public policy. 24 Furthermore, some states, Kentucky,
Louisiana, Nebraska, and Washington, have passed statutes that only invalidate surrogacy
agreements which involve compensation for the surrogate mother. 25 Some states have
not done anything legislatively towards surrogacy. In these states, ³the legal issues
generated by surrogacy agreements must be resolved by reference to public policy
considerations or statutes generally relating to adoptions, child custody, or the
termination of parental rights.´ 26
PART V: Public Policy
Public policy concerns will be raised during any attempts at legislation or court
ruling due to the actual nature of ART. When parties enter into a surrogacy parenting
agreement and perform a surrogacy, it is impossible to avoid the following basic public
policy concerns. The surrogacy process is argued to be similar and exploitable as a
means of selling babies for profit. Money is almost always exchanged during a surrogacy
agreement for services, expenses, and compensation. This does not mean that payment
for surrogacy services is an indication of exploitation of any kind and it also does not
constitute an ethical conflict. Surrogacy services are like any other service in that
typically the provider of the service gets paid for rendering said services. The issue,
however, falls heavily on the responsibility of society to protect women in economic
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hardships or in poverty stricken areas around the world of being exploited. The Ohio
Supreme Court has ruled ³that nothing in the laws of Ohio prohibits gestational-
surrogacy contracts or enforcing the terms of the contract.´ 27 In this case, the dispute
was over the legality and enforcement of a surrogacy contract where the surrogate mother
was paid $20,000 for her surrogacy service plus expenses. However, New York discards
the view that ³rights as fundamental as the right of a parent to a relationship with his or
her child should be bought and sold or waived irrevocably in advance of the child's birth.´
28 Internationally, countries such as Japan have proposed a ban on commercial
surrogacy arrangements.
29
India, however, has passed law making surrogacy legal, as
recognized by the Supreme Court of India. 30 India is a popular destination for
surrogacy parenting agreements because of the low cost offered by hospitals and clinics.
Complete packages range in price from $10,000 - $28,000. 31 One thing that is
commonly found is surrogacy mothers rarely are willing to go through a pregnancy
without some form of compensation.
The Catholic Church has made a firm public stance against surrogacy. It cannot
be denied that a form of surrogate pregnancy occurs in scripture. Abraham went into
Hagar and impregnated her in order to have a son. Abraham (then called Abram) did this
because his wife Sarah had not produced a son, therefore, "Abram¶s wife Sarai took
Hagar the Egyptian, her maid, and gave her to her husband Abram as his wife," (Gen.
16:3). The Donum Vitae outlines the Catholic Church¶s position on surrogacy. ³[T]he
moral relevance of the link between the meanings of the conjugal act and between the
goods of marriage, as well as the unity of the human being and the dignity of his origin,
demand that the procreation of a human person be brought about as the fruit of the
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conjugal act specific to the love between spouses." 32 Surrogacy is also considered a
violation of the rights of the child, since it "deprives [the child] of his filial relationship
with his parental origins and can hinder the maturing of his personal identity." 33
Furthermore, the Catholic Church describes surrogacy as a breakdown of the family to
their detriment and fails to meet the requirement of maternal love because surrogacy sets
up "a division between the physical, psychological, and moral elements which constitute
those families." 34
Those opposed to surrogacy argue that surrogate mothers might have a hard time
relinquishing their parental rights after birth because of the personal bond mother and
child form during pregnancy. Several studies have concluded that this isn¶t the case. The
Family and Child Psychology Research Centre in City University, London, UK reported
in 2002 that surrogate mothers only rarely had any reportable difficulty when it came to
relinquishing their parental rights to a surrogate child and showed that the intended
mothers showed a high level of warmth and caring towards their child.35 Studies of
surrogate mothers have also illustrated a range of methods employed by surrogate
mothers to distance themselves emotionally from the child throughout the pregnancy.36
A common argument presented on the debate of surrogacy is whether the woman
who agrees to a surrogacy parenting agreement fully understands both the physical and
emotional risks of that surrogacy parenting agreement. Professor Kronman (Anthony T.
Kronman is a Professor at Yale Law School ) argues that many surrogate mothers will
not anticipate the emotions they might experience during a surrogacy pregnancy.
Consequently, these women are not able to properly understand and with adequate mens
rea form enough of an understanding of the commitment and consequences making the
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surrogacy decision itself an irrational choice by the woman. 37 One possible solution to
this dilemma is to legally require a µcooling-off¶ period after the birth of the surrogate
child. 38 After the cooling-off period has ended, then the surrogacy agreement would
then become enforceable.
However, during the cooling-off period the surrogate mother would be able to
renounce her performance under the surrogacy parenting agreement without incurring
any legal penalties, damages, or other forms of compensation to the other contracting
party. This is counter-productive to current contract law and theory. While public policy
does weigh into whether a contract is enforceable, if surrogate mothers have the option of
changing their mind about their performance requirements, then that would make
entering surrogacy arrangements both very risky and unfair for the intended parents.
Furthermore, it would create a situation where a would-be surrogate mother could
fraudulently induce intended parents into entering into a surrogacy agreement with the
true intent to obtain a µfree ride,¶ have all her medical expenses paid for, and still be able
to keep the child without incurring any penalties. A µcooling off¶ period would not
prevent harm, it would create an environment for even further harm.
In the absence of statutes and legislation regarding surrogacy, the demand on the
court system would increase indefinitely, because the court would have to look to law in
other areas such as adoption, contract law, family law, child custody, and if the State
allows for, termination of parental rights. This unfortunately leaves the courts with a
perplexing paradox where outcomes to disputes over surrogacy agreements are nearly
infinite and almost unpredictable. Establishing legislation and statutes to address
surrogacy would specify how the court should proceed under law with dealing with
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disputes and in return would provide uniformity of outcome.
PART VI: California Law
In the United States, surrogacy is regulated differently as you move from state to
state (see above sections for examples). Of all 50 states, California stands out in the
world of surrogacy because they have passed the most lenient surrogacy laws. California,
in particular, has been found to have a favorable legal environment for surrogacy by
taking the lead through passing laws and by the California Courts to expand existing
Family Law statutes to protect adoptive parents and surrogacy mothers. Parties to a
surrogacy agreement can be reasonably certain that their intentions as expressed in their
contractual agreement will be upheld in a California court. This certainty is provided by
the consistent ruling of California courts to uphold the rights of the intended parents of a
surrogacy parenting agreement. Furthermore, such consistent rulings allow for the
outcomes of surrogacy agreements to be predictable.
In re Marriage of Buzzanca, two adopting parents entered into a surrogacy
contract where both the sperm and egg DNA did not come from the adoptive parents or
the surrogate mother, respectively. The husband, John A. Buzzanca, ³filed a petition for
dissolution of marriage, asserting that there were no children of the marriage, and the
wife filed her response, asserting that the parties were expecting a child by way of
surrogate contract.´39 The question presented to the court in re Marriage of
Buzzanca (March 10, 1998) was whether a married couple who entered into a surrogacy
agreement using donated sperm and egg where the legal parents, bounded by family law,
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of the child in question. The case, heard by the California Fourth District Appellate
Court, held that the parties were the lawful parents of the child. Even though neither the
wife nor husband was biologically related to the child, ³they were still her lawful parents
given their initiating role as the intended parents in her conception and birth.´40 Just as a
husband ³is deemed to be the lawful father of a child unrelated to him when his wife
gives birth after artificial insemination´, so will a husband and wife ³be deemed the
lawful parents of a child after a surrogate bears a biologically unrelated child on their
behalf.´41 Under the Uniform Parentage Act, the husband and wife were the lawful
parents of the born child. Therefore, John Bozzanca owed child support to Luanne
Bozzanca.
The court¶s ruling in J ohnson v. Calvert was a further victory for surrogacy by
upholding that the gestational surrogacy contract was legal and enforceable.42 The court
held that public policy did not bar the surrogacy contract.43 Although the Uniform
Parentage Act recognizes maternity by using two factors, matching DNA between mother
and child as well as proof of giving birth, the court ruled when ³the two [factors] did not
coincide in one woman, she who intended to procreate the child and raise as her own, was
the natural mother.´44 The Court also stated in effect that the intended mother who
carries a child born from donated egg is the mother of the child by the same reasoning.
As such, although the two women to the surrogacy contract could both prove their
maternity, the tie is broken in favor of the woman who was intended to be the mother as
expressed in the surrogacy contract.
Women are able to be single parents by simply going to a sperm bank and
undergoing artificial insemination. Men, however, do not have that option. Surrogacy
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allows for men to be able to become single parents, if they choose, by seeking a surrogate
mother and using either their sperm or donated sperm and the surrogate mother¶s egg or a
donated egg. This is an attractive option for gay couples as well who want to adopt but
also want to be able to have a child sharing their DNA.
Unlike with women, men face a larger risk of losing parental rights when they use
a surrogate mother¶s egg instead of a donated egg. Traditionally, if the surrogate mother
decides to keep the child, a single man would either remain a co-parent with the surrogate,
or attempt to terminate the surrogate's maternity through a cumbersome and
unpredictable abandonment proceeding. In Moschetta, the court affirmed that the
surrogate mother ³was the child's mother because [the surrogate mother] was both the
biological and birth mother of the child under the Uniform Parentage Act.´45 After the
Buzzanca court's explanation of Moschetta, where the surrogate mother does not claim
parental rights, the court will likely follow the intentions of the parties, by abiding to the
intentions of the parties expressed in the surrogacy contract. Under the court¶s reasoning,
the single man would be the sole parent and the surrogate mother would not have parental
rights. However, under Moschetta, if the surrogate mother changes her mind about the
agreement and claims a right to the child, she might obtain a judgment in her favor if the
child shares her DNA and she gives live birth to the child. In order for the father to avoid
possible custody loss, it is recommended that the father should use a donated egg to avoid
this possibility, because under Buzzanca, the court ruled that the intended mother
received parental rights because the egg was donated and was not of the surrogate mother.
Infertile couples from other states and countries around the world find California
a beneficial choice for surrogacy because of the favorable legal environment for
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upholding the intentions of the surrogacy contract. An alternative viewpoint would
suggest that if a surrogate mother µdonates¶ her egg to the surrogacy agreement, then the
chance of a surrogate mother winning parental rights would be reduced if not eliminated
by the court¶s ruling in Buzzanca. If a donated egg is not used, it would be harder for the
father to argue that a tie exists and the court would more likely grant parental rights to a
surrogate mother, which would violate the intentions of the surrogacy contract. For these
reasons above, California remains the most favorable state when it comes to surrogacy
and should serve as a model for other states.
PART VII: Ohio Law
In many states across the US, there exists little if any law pertaining to surrogacy.
In a recent Ohio case, J .F. v. D.B., a surrogate mother claimed parental rights on the
grounds that a gestational surrogacy contract with the biological father violated Ohio's
public policy and was unenforceable.46 The Court of Appeals, after finding that little law
existed regarding surrogacy contracts, determined that ³nothing in Ohio law prohibited
such contracts or the enforcement of the terms of the instant contract against the surrogate
mother and the surrogate mother's husband.´47 Like in California (see above section), the
Ohio court noted that a traditional surrogate, whose own egg was involved, might have a
different legal position.48 Contracts, in general, are entered into by two parties and those
parties are generally expected to honor the contract that they entered into. However, the
liberty of contracts does not carry an absolute and unlimited right, but gives way to public
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policy (see above sections about Public Policy). Since Ohio does not have any public
policy against gestational-surrogacy, no public policy was violated.
In this case, the biological father contracted with a gestational surrogate to carry
eggs implanted from a nonparty donor. The surrogate contract stated that the surrogate
mother would be paid $20,000 for her services, would require her to relinquish her
parental rights, and permit the biological father to avoid child support payments from the
surrogate if she was awarded custody. In a further victory for surrogacy, the Ohio
Supreme Court found that surrogacy is different from adoption and dismissed those
adoption statutes as off-point.
49
However, the dissent points out that the $20,000
payment for "services" is too hard to separate from the requirement of relinquishment of
parental rights, which cannot be bargained for.50 The dissent also argued the section of
the contract which allows for the father to avoid child support payments if custody is
awarded to him as against public policy and current Ohio Family Law.51 One of the legal
complications with surrogacy is with assigning child support when there is a parental
rights dispute. Fortunately for surrogacy and intended fathers, the Ohio court ruling
moved this complication into the light of justice by deciding the terms of the contract as
legally binding and ruling based on the µfour corners¶ of the surrogacy contract.
PART VIII: International Law, India
Surrogacy programs across the global have been increasing due to the
increasingly restrictive global market for international adoption, the affordability offered
by some countries, and the less restrictive legal barriers to surrogacy arrangements.52
It
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is approximately definite that cross-border surrogacy arrangements will increase. India
currently has access to modern technology and skilled medical personnel capable of
providing surrogacy programs at a lower cost than comparably in the United States. In
the 1980s, the United States was practically alone in the world with regard to permitting
commercial surrogacy arrangements. Currently, India is quickly becoming the most
popular place in the world for surrogacy arrangements.53
However, unlike the United States, India has done very little to protect, on a
national level, the interests of Indian women, the children, or the individuals who travel
to India to enter into the surrogacy agreements. Despite various restrictions and sanctions
passed by some countries, a global market for surrogacy has emerged. The reproductive
segment of India¶s medical tourism market is valued at more than $450 million a year.54
As it goes with new markets, the surrogacy market is no different as there are very few
checks and balances which unfortunately allow for exploitation of those with the least
amount of bargaining power: surrogate women and children.
Many countries across the globe either ban or harshly regulate surrogacy such as
Italy, Germany, France, Canada, Israel, and the United Kingdom.55 While each country
is free to create and enforce their laws as they see fit, it must be noted that because of the
easily exploitative nature of surrogacy that in order for surrogacy to be a viable and fair
option for infertile couples across the globe, careful attention must be given to the
international legal environment for surrogacy. The legal inconsistency between countries
has made it common for parties to cross borders to other countries to enter into surrogacy
arrangements. This may seem like a favorable condition to those seeking surrogacy in a
country where surrogacy is banned or severely regulated, however as even a proponent
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for surrogacy, the legal inconsistencies across borders is unfortunately leading to
complications with surrogacy arrangements. The goal should be to create a positive legal
environment which is supportive of surrogacy but also protects all parties involved.
It may be a simple enough process to enter a surrogacy agreement across borders,
however obtaining a birth certificate or citizenship for the child may prove to be more of
a challenge than some couples anticipates. Inconsistent legislation amongst the states
already creates parentage issues for children born of surrogacy in the United States.56
Children born to a foreign surrogate mother can add more layers of complication to each
surrogacy case. Birth certificate regulations and practices in foreign countries may lead
to the surrogate born child to encounter legal parentage issues when entering the home
country of the adoptive parents. In some countries, the adoptive couple may be listed on
the child¶s original birth certificate by court order, or the adoptive couple must take
additional steps for an amended birth certificate to be issued such as a step-parent
adoption. A worse case is when adoptive parents are not able to have their name placed
on the child¶s birth certificate. Some adoptive parents have even faced criminal penalties
for attempting to take babies who were allegedly born through surrogacy arrangements
out of the country.57
PART IX: Conclusion
Legislatures and political systems must be engaged in and informed by the debate
surrounding surrogacy if the legislation adopted is to be effective and complete, because
the debate surrounding surrogacy involves a complex web of philosophical, legal, moral,
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and social issues. If lawmakers and politicians are mindful of the parameters of the
debate, they will be more successful in drafting legislation that will anticipate and counter
opposing arguments and will enhance the positive aspects of surrogacy. The child born
of surrogacy arrangements has the same needs as any other child. The child needs a
stable, caring environment, both at home and in society. Children risk being needlessly
harmed psychologically if they are told in any manner that they are a commodity or
unnatural.
If a state or country should chose to allow for surrogacy, that entity should
implement legislation that attempts to balance both the public policy concern for the
surrogate mother along with the concern for the infertile couple or person. The function
of the legislation should be to make certain that, to the reasonable extent possible,
problems are solved on the front end of the agreement. The legislation should seek to
establish a pre-contractual procedure requiring a psychological and physical examination
before either party seeking surrogacy, couples seeking a surrogate and potential surrogate
mothers, are legally able to enter into a binding contractual agreement. One way to
streamline this proposed process would be to carry over existing tests, such as a home
study of both couples and potential surrogate mothers, from current adoption agency
procedure and law.
The contract that is to be used should provide for all medical expenses and
insurance to be paid for by the couple and should have terms addressing the possible
termination of the pregnancy. Some laws currently enacted call for granting a µgrace
period¶ to the surrogate after the birth to allow the surrogate mother a chance to decide
whether she wants to surrender her parental rights or share them with the intended father.
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In order to provide for a reliable and just contractual agreement, not to mention fair, no
µgrace period¶ should be allowed. A µgrace period¶ would destroy the benefit of
surrogacy and allow for exploitation by surrogate mothers of intended fathers¶ income in
the form of lost money spent on expenses and future child support as well as causing
undue emotional and financial hardship on the intended parent(s). A possible solution to
this would be that if the domestic law would support a µgrace period¶ than that law should
be followed with another set of laws (or even the contract could contain such clauses)
stating if the surrogate mother changes her mind and decides to keep the child, she cannot
claim any child support and must repay back all money (medical expenses, cost of living,
etc previously paid for by the intended parents) to the intended parent(s). After the birth
of the child and when the surrogate relinquishes her parental rights, the law should
establish a presumption that the wife of the intended couple is the mother of the child.
The law should establish a fee cap on compensation above expenses, but not
prohibit compensation altogether to avoid exploitation of surrogate mothers especially in
poverty stricken areas of the world. Allowing payment to the surrogate recognizes the
time and effort that she has spent on behalf of the intended parents. Furthermore, the fee
should be rendered even if the baby is stillborn or does not survive the birth. The
surrogate mother has still tendered her services whether or not the baby is a perfectly
healthy baby or exactly what the intended parents were expected.
In conclusion, surrogacy can be a wonderful and productive alternative for
infertile couples. Due to the complex nature of surrogacy, careful construction of laws
and practices are required. As with most things, most problems can be solved through
careful and diligent contract drafting combined with certainty from the legal system.
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Surrogacy is not a perfect alternative, but it is a choice that all people should be allowed
to make for themselves. If two parties are willing to enter into a surrogacy arrangement,
then the law should ensure completion of both parties¶ performance and if damages or
loss occurs to cure those damages fairly and justly. However, without intelligent and
informed decisions on behalf of legislatures, surrogacy could become a very terrible thing
in some parts of the world. For these reasons presented, the solution to surrogacy begins
with education on the subject and ends with bringing into this world healthy and happy
babies who one day might cure cancer, end poverty, or even take the first steps on Mars.
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1 Black's Law Dictionary 131 (8th ed. 2004).
2 Id.
3 Id.
4 http://legaldictionary.thefreedictionary.com/Surrogate+Motherhood.
5 "Assisted Reproductive Technology (ART) Glossary" Reproductive Technology
Council. Retrieved 2008-01-06.
6 Id.
7 Id.
8 http://www.fertstert.org/article/S0015-0282(98)00103-4/abstract.
9 http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002173/.
10 This generalization comes from the popular American celebrity culture of
adopting foreign babies instead of rearing children of their own. It is easier to
apply for adoption than to risk your physical appearance by going through
pregnancy. Medical data shows (plus experience) that after pregnancy, most
women are left with stretch marks, differing weight gains hardly ever lost, a
change in horomones, and even a scar if a C-section is performed.
11 http://www.childwelfare.gov/systemwide/statistics/adoption.cfm#gen.
12 http://www.theadoptionguide.com/cost/articles/how-much-does-adoption-cost.
(The average cost of adoption, as reported in the latest Ad optive
Families adoption cost survey (2009-2010), was around $30,000 (before the
federal tax credit and employee adoption benefits))
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13 Parker, Motivation of Surrogate Mothers: Initial Find ings, 140:1 AM. J.
PSYCHIATRY 117 (1983).
14 Id. at 118.
15 Id.
16 Id.
17 Id.
18 Id., supra note 32, at 117 (³Of 122 women, 108 (89%) said that they required a
fee for their participation: most required at least $5,000.´).
19 Id., supra note 32, at 118.
20 Black's Law Dictionary 1485 (8th ed. 2004).
21 Black's Law Dictionary 1485 (8th ed. 2004).
22
See Fla. Stat. Ann. § 742.15 (West 2007); 750 Ill. Comp. Stat. Ann. 45/6 (West
2007); Nev. Rev. Stat. Ann. § 126.045 (LexisNexis 2007); N.H. Rev. Stat. Ann. §
168-B:16 (2007); Va. Code Ann. §§ 20-159, -160(B)(4) (2007).
23 See Ala. Code § 26-10A-34 (LexisNexis 2007); Ark. Code Ann. § 9-10-201
(West 2007); Iowa Code Ann. § 710.11 (West 2007); W. Va. Code Ann. § 48-22-
803 (LexisNexis 2007).
24 See Ariz. Rev. Stat. Ann. § 25-218 (2007); D.C. Code § 16-402(a) (2007); Ind.
Code Ann. §§ 31-20-1-1, -2 (West 2007); Mich. Comp. Laws Ann. § 722.855
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(West 2007); N.Y. Dom. Rel. Law § 122 (McKinney 1999); N.D. Cent. Code §
14-18-05 (2007); Utah Code Ann. § 76-7-204 (West 2007).
25 See Ky. Rev. Stat. Ann. § 199.590(4) (LexisNexis 2007); La. Rev. Stat. Ann. §
9:2713 (2007); Neb. Rev. Stat. § 25-21,200 (2007); Wash. Rev. Code Ann. §§
26.26.230, .240 (West 2007).
26 Danny R. Veilleux, Annotation, Validity and Construction of Surrogate
Parenting Agreement, 77 A.L.R. 4th 70, 74 (1989).
27
J.F. v. D.B., 116 Ohio St. 3d 363 (Ohio 2007).
28 New York State Department of Health: The History of the Task Force,
http://www.health.state.ny.us/nysdoh/taskfce/taskbio.htm (last visited Oct. 11,
2007).
29 http://www.japantoday.com/jp/news/430424 Kyodo News.
30 The Associated Press (2007-12-30). "India's surrogate mother business raises
questions of global ethics". Daily News. Retrieved 2008-07-14.
31 Regulators eye India's surrogacy sector. By Shilpa Kannan. India Business
Report, BBC World. Retrieved on 23 Mars, 2009.
32 (Donum Vitae, II, 4) Joseph Cardinal Ratzinger, Congregation for the Doctrine
of the Faith: Donum Vitae, Instruction on Respect for Human Life in Its Origin
and on the Dignity of Procreation: Replies to Certain Questions of the Day
[hereinafter Donum Vitae] http://www.eubios.info/EJ64/EJ64H.htm.
33 (Donum Vitae II, 2).
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34 (Donum Vitae, II, 3).
35 See MacCallum, Fiona et al. 2003. Surrogacy: The experience of
commissioning couples Human Reproduction, Vol. 18, No. 6, 1334-1342; Vasanti
Jadva et al. 2003. Surrogacy: the experiences of surrogate mothers. Human
Reproduction, Vol. 18, No. 10, 2196-2204; Golombok, Susan et al., 2004.
Families Created Through Surrogacy Arrangements: Parent-Child Relationships
in the 1st Year of Life. Developmental Psychology, v40 n3 p400-411.
36
See Teman, Elly (2003) "The Medicalization of 'Nature' in the Artificial Body:
Surrogate Motherhood in Israel," Medical Anthropology Quarterly 17 (1):78-
98.[4]; Teman, Elly (2010) Birthing a Mother: The Surrogate Body and the
Pregnant Self. Berkeley: University of California Press.
37 See Kronman, Contract Law and Distributive J ustice, 89 YALE L.J. 472, 475
(1980); Kronman, supra notes 33-35 and accompanying text; Kronman, supra
note 148, at 793. (³[T]he pressing immediacy of our desires can paralyze our
ability to anticipate, in imagination, the moral consequences of our actions.´)
38 BLACK'S LAW DICTIONARY 302 (5th ed. 1979)
39 In re Marriage of Buzzanca, 61 Cal. App. 4th 1410 (Cal. App. 4th Dist. 1998).
(The husband filed for divorce six days before the birth of the child, and the
intended father claimed that since he was not the biological father of the child, he
was not the child's father and could not be forced to adopt.)
40 Id.
41 Id. (Opinion by Sills, P. J., with Wallin and Crosby, JJ., concurring.)
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42 Johnson v. Calvert, 5 Cal. 4th 84 (Cal. 1993)
43 Id.
44
Id.45 In re Marriage of Moschetta, 25 Cal. App. 4th 1218 (Cal. App. 4th Dist. 1994)
46 J .F. v. D.B., 116 Ohio St. 3d 363 (Ohio 2007)
47 Id.
48 Id.
49 Id.
50 Id.
51Id.
52 Iris Leibowitz-Dori, Note, Womb for Rent: The Future of International Trad e in
Surrogacy, 6 MINN. J. GLOBAL TRADE 329 (1997) (noting that adoption
intermediaries have already taken advantage of the strong economic incentives of
the international baby market with surrogacy soon to follow as a natural substitute
to adoption).
53 Neeta Lal, A Labour of Love, KHALEEJ TIMES, Feb. 29, 2008, available at
http://www.khaleejtimes.com/DisplayArticle.asp?xfile=data/weekend/2008/Febr
uary/weekend_February116.xml§ion=weekend&col= (reporting that Dr.
Anoop Gupta, Medical Director, Delhi IVF and Fertility Research Centre, New
Delhi claims he has delivered over 3,000 surrogate children since he opened his
clinic in 1995).
54 Cheaper Overseas: Surrogate Mothers, In-Vitro Fertilization is $6,000 in Ind ia
and $60,000 in the U.S., ABC NEWS, Sept. 28, 2007, http://abcnews.go.com/
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GMA/story?id=3664065&page=1 (600 IVF clinics in India bring more than $400
million a year into the local economy); see also Ramachandran, supra note 51
(reproductive tourism valued at more than $450 million in India); Randeep
Ramesh, British Couples Desperate for Chil d ren Travel to Ind ia in Search of
Surrogates: Ethics und er Scrutiny as Woul d -be parents are Enticed by Lower
Costs and Relaxed Laws, GUARDIAN, Mar. 20, 2006, at 26, available at
http://www.guardian.co.uk/ world/2006/mar/20/health.topstories3 (noting that
fertility market is worth about 250 million pounds per year).
55 For tables of comparative international laws on surrogacy, see SUSAN
MARKENS, SURROGATE MOTHERHOOD AND THE POLITICS of
REPRODUCTION 24-25 (2007); EricBlyth & Abigail Farrand, Reprod uctive
Tourism ± a Price Worth Paying for Reprod uctive Autonomy?, 25 CRITICAL
SOC. POL¶Y 91, 93 (2005).
56 Jerald V. Hale, Note, From Baby M. to J aycee B: Fathers, Mothers, and
Chil d ren in the Brave New Worl d , 24 J. CONTEMP. L. 335, 373 (1998).
57 See Police Detain American Woman Attempting to Take Newborn Baby Out of
Ukraine, UKRANIAN NEWS AGENCY, Nov. 6, 2007,
http://www.chasingevil.org/2007/11/hatemonger-arrested-for-human.html.
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