surrogacy: the international and domestic legal implications

8/3/2019 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.



Page | 22

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.



Page | 23

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))



Page | 24

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.



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



Page | 25

(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).



Page | 26

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.)



Page | 27

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&section=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/



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.

surrogacy: the international and domestic legal implications

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