REPRODUCTIVE SURROGACY AT THE MILLENNIUM: Proposed Model Legislation Regulating “Non-traditional” Gestational Surrogacy Contracts.

Weldon E. Havins, M.D., J.D.

James J. Dalessio, J.D.

“In the creative process there is the father, the author of the play; the mother, the actor pregnant with the part; and the child, the role to be born.”

 Konstantin Sergeevich Alekseev Stanislavski, An Actor Prepares (1936).

             The science of artificial reproductive technology (ART) provides ever-increasing options to the person or couple who wish to beget a child.^[1]  Single, infertile, or childless men who would have never imagined the possibility of fatherhood can now opt for fatherhood.^[2]  Couples incapable of bearing children but with functioning gonads can elect to beget their own genetic children.  Women with non-functioning ovaries or who have undergone a hysterectomy no longer need to be resigned to never having children.   Women, wishing to delay having children but anxious about losing their opportunity to reproduce, can now have their eggs harvested and frozen for their future use.^[3]

However, all these seeming miracles must surmount an obstacle.  That obstacle is not so much grounded in the science of ART as it is in the legal roadblocks affecting contractual surrogacy arrangements.  Surrogacy contracts come in two forms: traditional surrogacy wherein a man’s (usually Husband’s) sperm is used to artificially inseminate a surrogate and gestational surrogacy wherein an in vitro fertilized egg is implanted into a surrogate.  The legal advantages and problems associated with each will be discussed and analyzed.  Because of the historical common law, and contemporary statutory hostility to traditional surrogacy arrangements, this paper will argue in favor of  bypassing  traditional surrogacy in favor of gestational surrogacy arrangements.  Part I of this paper will discuss the judicial approach to traditional surrogacy contracts.  Part II will review the court’s reasoning and holdings regarding gestational surrogacy contracts.  Part III will discuss the many varied legislative approaches to the surrogacy contract problem.  Part IV will review the moral and ethical arguments surrounding surrogacy.  In Part V, the paper will conclude by suggesting a simple Uniform Surrogacy Act promulgating a common scheme regulating gestational surrogacy.

Part I   TRADITIONAL SURROGACY CONTRACTS

Traditional surrogacy^[4] involves a contract between an infertile couple (H and W, for example) and a fertile woman (surrogate).  In the traditional surrogacy contract, the surrogate agrees to be inseminated with husband’s sperm and to carry the pregnancy to term.  After the birth of the baby, the surrogate promises to relinquish all rights to the baby, transfer the baby to H and W, and facilitate the wife’s adoption of the baby.^[5]  For this, all the surrogate’s expenses are paid by H and W in addition to a fee for the surrogate’s services.  These traditional surrogate contracts have not been well received in the common law courts.

The first case to reach a state supreme court occurred in 1988, in In re Baby M.^[6]  The New Jersey courts were asked to determine the validity of a contract providing a new way to bring a child into a family.  In addition to expenses, the surrogacy contract provided for a fee of $10,000.00 for the woman’s services.  For this consideration, the woman promised to be inseminated with the contracting party husband’s sperm, to carry the conceived child to birth, to transfer the custody of the child to the husband-father, to relinquish all legal rights to the child, and finally, to assist with any formalities of adoption by the wife.  However, after the child was born, the gestational mother refused to honor the contract and demanded custody of their child.  The husband and wife sued for specific enforcement of the contract. 

The Trial Court held that New Jersey statutes governing adoption, termination of parental rights, and the prohibition of the payment of money in connection with adoption did not apply to surrogacy contracts.^[7]  The Trial Court held the surrogacy contract valid and ordered specific performance of the contract.^[8]  Granting the husband sole custody of the child,^[9] the Trial Court severed any parental rights of the surrogate, and granted adoption of the child by the wife.^[10]

On appeal, the New Jersey Supreme Court reversed and invalidated the surrogacy contract, holding that it conflicted with the same laws the Trial Court found inapplicable to the issues.  The Supreme Court held that the payment of money to a surrogate mother was illegal, contrary to public policy, and potentially “degrading to women.”^[11]  While the Court granted child custody to the father, it voided the wife’s parental rights and the wife’s adoption of the child.  The Supreme Court then declared the surrogate to be the child’s natural and legal mother.^[12]  The Court added, however, that where a woman “voluntarily and without payment agrees to act as a surrogate, provided she is not subject to a binding agreement to surrender her child, no New Jersey law is offended.”^[13]  The Court appeared to be stating that surrogacy per se did not offend New Jersey law; however, enforcement of a surrogacy contract offended New Jersey law.

A few years later, a California Fourth District Court of Appeal ruled on the validity of “traditional surrogacy” contracts in California.^[14]  The Court began by distinguishing traditional surrogacy from an earlier California Supreme Court case addressing “gestational surrogacy.”^[15]  The Court also distinguished a case where a sperm supplier (ambiguously referred to as a sperm “donor”) asserts parental rights.^[16]  The Court of Appeal relied on a California Family Code provision requiring that consent for adoption of the baby be obtained by, and in the presence of, a licensed social worker.^[17]  Because traditional surrogacy contracts are necessarily entered into before the child is born, traditional surrogacy contracts cannot comply with the California Family Code provision because there is no baby (and no fetus) at the time of contract.  Consequently, the Court held, traditional surrogacy contracts are invalid in California.^[18]

The common law, then, evidences judicial hostility toward traditional surrogacy contracts and holds these contracts to be invalid as against public policy or otherwise unenforceable. 

The consistent judicial approach of holding traditional surrogacy contracts unenforceable cracked in 1998 involving two traditional surrogacy cases.  The Connecticut Supreme Court, apparently persuaded more by considerations of equity than of common law, in effect treated two cases as though a valid traditional surrogacy contract existed.

The first such instance occurred in the Connecticut Supreme Court case of Jane Doe v. John Doe.^[19]  Here, the couple’s advertisement for a surrogate in their local newspaper resulted in a woman’s agreement to serve as their surrogate.^[20]  The surrogate was, incidently, also married and living with her husband at the time.

John and Jane Doe, not being a couple to waste perfectly good medical insurance premiums, accompanied the surrogate to her pre-natal doctor visits where the surrogate assumed Jane’s identity, using Jane’s name, and Jane’s social security number.  Upon admission to the hospital for delivery, the surrogate identified herself as Jane and the birth certificate indicated Jane’s name as the mother.  The surrogate, of course, signed Jane’s name on all the hospital forms including the birth certificate.  True to her bargain, the surrogate delivered the baby to John and Jane upon leaving the hospital, never to bother the couple again.

The apparently successful ruse collapsed when Jane filed for divorce and requested custody of the now fourteen year old child.  John countered with the uncontested fact that Jane was not the genetic mother and that Jane had never adopted the child.  The trial court held that the child was not an issue of the marriage and thus it had no subject matter jurisdiction to determine the custody dispute between John and Jane.

Complicating matters, the surrogate was married and living with her husband during the course of the pregnancy and delivery.  Connecticut law provides that a child born to a married woman living with her husband is a presumed child of the (surrogate’s) marriage.^[21]  The trial court concluded that this presumption had not been rebutted by the requisite clear and convincing evidence.  At that point, it appeared that neither John nor Jane could be declared the child’s legal parent with the presumed parents having moved out of the jurisdiction and unavailable.

After the trial court’s ruling that the child was not a child of John and Jane’s marriage, John brought a motion in probate court to be declared the child’s father and to sever any (now uncontested) parental rights of the surrogate and her former husband.  This motion was granted by the probate court.  The trial court, deferring to the probate court’s holding declaring John to be the father, subsequently ruled that it, the trial court, did not have jurisdiction to decide custody.  Thus, the trial court recognized the child’s custody to be with the father by default.

On appeal, the Connecticut Supreme Court reversed and concluded that the trial court did have subject matter jurisdiction over the custody matter.  Further, the Court held  the statutory presumption of a child’s best interest to be with the natural parent did not apply.  The case was remanded back to the trial court for a determination of child custody solely based on the best interests of the child.^[22]  While specifying that Connecticut’s equitable parent doctrine did not apply to the facts of this case,^[23] the court strongly suggested that the wife should receive custody of the child.  This, of course, is precisely the application of the equitable parent doctrine.

This case serves as an example of the twisted reasoning to which a court, bound by a policy of invalidating surrogacy contracts, will resort to give effect to the substantial purposes of the surrogacy arrangement.^[24]  The Court here suggests that the best interests of the child test trump the jurisdiction’s common law and statutory law.  However, the best interests of the child test is normally used to determine which parent will be awarded custody.  Evidently, the court here would vest complete equity power in the trial courts to determine child custody on a best interests basis, whether or not the child issued from the marriage.^[25]

Later that same year, 1998, the Connecticut Supreme Court became the subject of another controversial holding.  In Mary Doe v. John Roe,^[26] the Supreme Court ruled on whether the Superior Court (general jurisdiction trial court) had subject matter jurisdiction to render judgment in accordance with a stipulated agreement reached in Probate Court.  That post-baby birth settlement agreement included a promise by the traditional surrogate mother to consent, for additional consideration, to the termination of her parental rights.

Here, a traditional surrogacy contract between a husband and a surrogate resulted in the birth of a healthy baby girl.  Four months later, the surrogate mother filed a motion for habeas corpus, in probate court, seeking custody of the child.  She also filed for declaratory judgment, requesting a determination that the surrogacy contract was void as both against public policy and as a coercive contract allegedly signed under duress and false pretenses.  The father counterclaimed, asking the Court for specific performance of the surrogacy contract.  During the course of the litigation, a settlement was reached in which the surrogate mother agreed to relinquish her parental rights for additional consideration.  The probate court accepted the settlement agreement, terminated the surrogate’s parental rights, and authorized the beginning of proceedings for step-parent adoption. 

Because the surrogate refused to sign the adoption papers or relinquish custody of the child eight months after the settlement agreement had been accepted by the probate court, the husband and wife filed a motion in superior court asking that court to hold the surrogate in contempt for failing to comply with the terms of the settlement agreement.  The surrogate countered with a motion requesting the court to declare the agreement to be a nullity as based on an unenforceable surrogacy contract.

The Connecticut Supreme Court, arguably acting in the child’s best interest, ultimately ignored the invalid traditional surrogacy contract and ruled that the superior court had jurisdiction to enforce the settlement agreement, and that the superior court had the authority to order its specific enforcement.  This case suggests that if a surrogate sues to invalidate a traditional surrogacy contract, a prudent husband and wife in Connecticut would delay settlement of the case until the baby’s birth.  After the birth of the baby, a surrogate’s judicially accepted settlement agreement providing for the “voluntary” termination of her parental rights (in consideration for more money, of course) would be enforceable as resolution of a custody dispute, and husband and wife would become the legal parents. 

Thus, even though a traditional surrogacy contract would be unenforceable, the effect of enforcement may be attained through a settlement agreement which will likely include the original pecuniary consideration, plus some additional consideration.  This apparently does not violate the prohibition against “buying a baby” adoption laws.  Connecticut courts will view this type of settlement as a valid accord and satisfaction of a disputed claim.  The distinguishing feature of this case was to give effect to a post-birth settlement agreement of a presumably unenforceable pre-birth traditional surrogacy agreement.

These sagacious decisions float alone in the sea of judicial hostility to traditional surrogacy contracts.

          Part II   GESTATIONAL SURROGACY CONTRACTS^[27]

Gestational surrogacy differs significantly from traditional surrogacy.  In gestational surrogacy, an ovum is fertilized with sperm in vitro.^[28]  The zygote is grown into an eight cell (or more) organism (embryo), at which point it is either placed into the uterus of a woman unrelated to the gamete providers, or frozen for such future use.  The gestational surrogacy contract is entered into by a couple desiring to bring a child into the world and the uterus provider who is genetically unrelated to the embryo.   The gestational surrogate provides the incubator facilitating the development (gestation) of another couple’s genetic child.^[29]

California's landmark case of Johnson v. Calvert^[30] was the first to address the enforceability of gestational surrogacy contracts.  Crispina Calvert underwent a hysterectomy a few weeks prior to her marriage to husband Mark.^[31]  Mark and Crispina both desired to beget their own child.  Although without a uterus, Crispina’s functioning ovaries continued to produce healthy eggs.  A sympathizing co-worker of Crispina’s mentioned this sad situation to the co-worker’s friend who suggested that she, the co-worker’s friend, could serve as the couples’ surrogate.^[32]  The gestational surrogacy contract provided that for a fee,^[33] the surrogate, Ms. Johnson, would have Mark and Crispina’s in vitro produced embryo implanted into her uterus, would carry the fetus to term, and would relinquish all parental rights after the birth of the child.

Just before delivery, a dispute arose over the financial terms of the contract.  Ms. Johnson threatened to refuse give up the baby after the baby was born.^[34]  The Calverts sued to be declared the child’s legal and natural parents.  Ms. Johnson sued to have the contract declared an unenforceable surrogacy contract.^[35]

The trial court ruled in favor of the Calverts and ordered any parental rights of Ms. Johnson terminated.^[36]  The Court of Appeal^[37] unanimously affirmed, holding that a woman who agrees to have a couple’s fertilized egg implanted in her womb is neither the natural nor legal mother of the child.^[38]  The Court held the gamete suppliers are to be deemed the natural and legal parents of the child.  Further, the Court held that the surrogate was not deprived of any constitutionally protected interests.^[39]

The California Supreme Court, in a matter of first impression, affirmed the holdings of the two lower courts.^[40]  Holding California’s Uniform Parentage Act^[41] inapplicable because under the Act a woman could claim legal motherhood by either giving birth to the child or by proving genetic relation to the child,^[42] the Court declared its decision was governed by the “intent of the efforts of the parents” by which "the child would not have otherwise been born.”^[43]  In an epiphanic statement of brilliantly simple logic, the Court concluded that, “the parties’ aim was to bring Mark and Crispina’s child into the world, not for Mark and Crispina to donate a zygote to the surrogate.”^[44]  More generally, in a gestational surrogacy contract, the intent of the two genetic (gamete) suppliers is to bring a child into the world, not to donate their zygote to the surrogate.  This solitary finding clearly distinguishes traditional surrogacy from gestational surrogacy. 

The Court recognized that “a woman who voluntarily agrees to gestate and deliver for a married couple a child who is their genetic offspring is situated differently from the wife who provides the ovum for fertilization, intending to mother the resulting child.”^[45]  Additionally, the Court stated that all the parties realized that a pregnant woman has a constitutionally protected right to abort any fetus which she is carrying, consistent with current law.^[46]  Any promise abrogating that right would be unenforceable.  Additionally, the Court opined that “gestational surrogacy contracts do not exploit women of lower economic status any more than any other poorly paying and undesirable employment.”^[47]  Therefore, “gestational surrogacy contracts are not unconscionable or coercive as a matter of law.”^[48]

The dissenting justice in Johnson concluded that the satisfaction of the strong desire to have one’s own genetically related child was not worth the social price of the surrogacy arrangement.  He would have the case remanded to the trial court where the surrogacy contractual dispute would be settled on “the best interests of the child” basis.^[49]  He cautioned that the magnitude and severity of public policy considerations demand immediate legislative attention and action.^[50]

Those criticizing gestational surrogacy as economically exploitative should note that Johnson acknowledged that women of lower economic class would more likely serve as contractual surrogates than those of higher economic classes.  However, the California Supreme Court found that there was no factual basis to support the exploitation contention.^[51]  The Court added that no proof existed that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower paid or otherwise undesirable employment.^[52]

In 1994, an Ohio court found that its state statutes did not anticipate a surrogacy issue.  The Ohio court found the state’s birth registration statutes inapplicable in a gestational surrogacy arrangement.  In Belsito v. Clark^[53] the wife had undergone a hysterectomy just before marriage, just as was the case in Johnson.  Knowing of the couple’s yearning to have a child, the wife’s sister agreed to gestate the couples’ in vitro conceived embryo, without compensation.  As the pregnancy neared term, the couple learned of an Ohio law providing that if the birth mother is not married to the father, the child is officially deemed illegitimate.  To avoid stigmatizing their child as illegitimate, the genetic mother (wife) and genetic father (husband) filed a motion requesting a declaratory judgment finding them to be the legal and natural parents of the soon to arrive baby.

The Court found Ohio’s birth registration statutes inapplicable in a gestational surrogacy setting.  Consistent with Johnson, the Belsito Court noted the gestational mother was genetically unrelated to the embryo, and that the genetic providers’ (husband and wife) intent governed whether the child would be brought into being.^[54]  Because the husband and wife provided the child’s genes and because the husband and wife intended to bring the child into being, the Court held the husband and wife to be the natural and legal parents.^[55]  Therefore, the birth certificate was ordered to so indicate.^[56]

Thus, the Supreme Courts of California and Ohio reached the same compelling holding regarding gestational surrogacy contracts: the providers of the genetic gametes are the natural and legal parents of the child, and the intent of those providers to bring the child into the world controls.^[57]

Perhaps the ultimate gestational surrogacy contract case, involving five parties, occurred in California’s Buzzanca v. Buzzanca.^[58]  In Buzzanca, a sterile husband and an infertile wife, desiring a child but wanting to have some choice over the child’s genetic constituency, obtained a donated egg and selected donated sperm for in vitro fertilization.^[59]  The resulting embryo was implanted into the uterus of another woman serving as a contractual gestational surrogate.^[60]  Thus, neither husband nor wife were genetically related to the embryo derived from an egg donor and sperm donor.  The gamete donors were neither related to the contracting couple nor to the gestational surrogate.

Just before the birth of the child, Mr. Buzzanca filed for divorce.  Claiming she and her husband were the child’s parents, Mrs. Buzzanca demanded paternal child support payments.^[61]  Mr. Buzzanca disclaimed any paternal responsibility on grounds that he was not genetically related to the child and that the gestational surrogacy contract was invalid since it was signed after the pregnancy had commenced.^[62]  The surrogate made it clear that her responsibilities were limited to those of a contractual gestational surrogate.^[63]  The gamete providers were donors and had relinquished any rights at the time of their gamete donations.

The trial court examined California’s Uniform Parentage Act and determined that parenthood could be established by giving birth or by genetic relation proven by blood tests.  Because the Buzzancas were not genetically related to the child, the gametes were donated without intent to reserve parental rights, and the gestational mother was only obligated to perform under the terms of the contract, the trial court found that the baby was born parentless!^[64]

On appeal, the Fourth District Court of Appeals held that, under California common law, fatherhood could be established if the husband “consented” to the artificial insemination of his wife.^[65]  The court of appeal held that rule pertinent here.  Since Mr. Buzzanca consented to the in vitro fertilization which was intended to result in a child, he was the lawful father.^[66]  Uncontested, Ms. Buzzanca was held to be the child’s mother.  The child’s procreation was the product of a medical procedure initiated by intended parents.  The court reasoned that, as the legal father, Mr. Buzzanca was entitled to all the rights and responsibilities of fatherhood, including child support.^[67]

This 1998 case of Buzzanca follows the reasoning and holding the California’s Supreme Court in Johnson, and concurs with the Ohio Supreme Court in Belsito.  The common judicial approach of enforcing gestational surrogacy contracts and refusing to enforce  traditional surrogacy contracts is not found in our legislatures.

        Part III   STATUTORY REGULATION OF SURROGACY

Some states have adopted the Uniform Parentage Act (UPA),^[68] which appears to apply to surrogacy contracts.  Under the UPA, parentage can be established by either proving a genetic relationship to the child or by the woman bearing and delivering the child.  Applying the Act to a traditional surrogacy situation, the surrogate and the semen provider (usually the contracting husband) are the child’s mother and father.  The wife, since she is neither genetically related nor the birth mother, has no legal parentage status.  By contrast, in gestational surrogacy, both husband and wife are genetically related to the child, thereby providing the wife with a claim under the UPA.            Presently, four states have statutorily recognized the validity and enforceability of surrogacy contracts: Florida,^[69] Nevada,^[70] New Hampshire,^[71] and Virginia.^[72]  All four of these states prohibit the compensation of a surrogate^[73] although all permit payments for direct and indirect medical expenses.  Florida, New Hampshire, and Virginia are the only states that specifically recognize gestational surrogacy as distinct from traditional surrogacy although New Hampshire explicitly enforces non-compensated traditional surrogacy contracts also.  Except for these three states, neither Nevada, nor any other state statutorily distinguishes gestational surrogacy from traditional surrogacy, notwithstanding that fourteen years have passed since the birth of the first gestational surrogate child.  For their surrogacy contracts to be enforceable, New Hampshire and Virginia require advance judicial approval of the agreement.

Arkansas law, last amended in 1989^[74] appears to address only surrogates impregnated by artificial insemination.  The law provides that the child born by means of artificial insemination is presumed to be that of the intended mother rather than the surrogate mother.^[75]

Surrogacy contracts are declared void by statute in the following states: Arizona,^[76] Indiana,^[77] Louisiana,^[78] Michigan,^[79] Nebraska,^[80] New York,^[81] North Dakota,^[82] and Tennessee.^[83]

The following six jurisdictions provide for criminal penalties for various acts involving surrogacy contracts:  District of Columbia,^[84] Kentucky,^[85] Michigan,^[86] New York,^[87] Utah,^[88] and Washington.^[89]  Kentucky,^[90] Nebraska,^[91] and Washington^[92] define surrogacy contracts as those in which a woman is compensated for gestating a baby conceived by artificial means.  One could infer from these statutes that non-compensated arrangements are lawful and presumably enforceable assuming compliance with contract law. 

An example of the courts and the legislature viewing the enforceability of surrogacy arrangement differently occurred in Kentucky.  The Kentucky Supreme Court ruled, in Surrogate Parenting Associates v. Commonwealth,^[93] that compensated surrogate parenting contracts were enforceable.  The Kentucky legislature responded by passing a bill providing for the unenforceability of compensated surrogacy arrangements.^[94]  This implies that Kentucky follows Florida, Nevada, New Hampshire, and Virginia whose statutes provide that uncompensated surrogacy arrangements are enforceable.

So, it is apparent that gestational surrogacy contracts can be anywhere from valid and enforceable to the subject of a felony violation with a prison term (along with associated revocation of professional licenses).  Some states, such as Florida and Virginia specifically address gestational surrogacy contracts.  Others, like New Hampshire, only imply a recognition of gestational surrogacy contracts.  However, most states legislatively addressing the issue do not distinguish between traditional and gestational surrogacy.  All this inconsistency occurs in the face of a brilliant 1993 California Supreme Court decision which could not have more clearly delineated the distinction between traditional and gestational surrogacy contracts.

      PART IV  MORAL AND ETHICAL CONSIDERATIONS

Opponents of surrogacy have lobbed criticism at the mere concept of surrogacy.  Some opponents contend that surrogacy exploits women.^[95]  The court in Baby M stated that compensated surrogacy agreements financially exploit vulnerable women much as does baby selling.^[96]  The court declared that a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment renders the contract inherently involuntary.^[97]  Further, the court implied the rather large payment in a surrogacy contract gives rise to an unacceptable class distinction whereby rich barren women benefit at the expense of poor fertile women.^[98]

One commentator maintains there is little compelling evidence for the claim that surrogate arrangements are inherently exploitative.^[99]  There are many other motives for women to become surrogates: many wish to help an infertile couple beget a child; others may wish to experience pregnancy and childbirth without having to raise a child.^[100]  Thus, the financial exploitation argument appears weak, at best.

Another type of exploitation argument contends that surrogacy reduces a woman to the status of a commercial good.  This is the so-called commodification argument.^[101]  Adherents to this argument fear that women will be hired as surrogates because of their beauty, intelligence, or race.^[102]  Professor Richard Epstein rejects this argument as an effort by some to impose their own conception of the right and proper thing to do with bodies, sperm and eggs, upon those who may feel differently.^[103]  Epstein rightly feels that no one’s views on commodification should be imposed on those who disagree.^[104]

Some feminists argue that surrogacy contracts prostitute or enslave women in exchange for money.^[105]  They argue that like prostitutes, surrogates are forced into that role as an economic necessity.^[106]  They conclude that because prostitution is morally illegal, so should be surrogacy on the same basis.^[107]  Epstein counters that surrogacy contracts cannot be blocked simply because some disapprove of the motives and actions of others.^[108]  Further, as the Supreme Court in Casey v. Planned Parenthood stated, morality alone cannot be the basis for the law.^[109]

Professor Hill explains that for a contract to be exploitative, an offer must create or take advantage of a known psychological vulnerability rendering the victim incapable making reasonable decisions.^[110]  Consequently, commercial contracts such as surrogacy contracts are not generally exploitative.^[111]

Finally, traditional surrogacy arrangements are criticized as akin to baby-selling.  Because state statutes generally prohibit, in the context of adoption, exchanging money for a baby, surrogacy contracts should be prohibited because the result is the same, i.e., the procurement of a baby for money.^[112]  Commercial surrogacy places a baby in a home without considering whether the prospective parents would be suitable.^[113]  However, this argument is undermined when one considers that innumerable babies are born into households where the parents may be considered unsuitable.

Perhaps the more common feminist approach to surrogacy is exemplified by the famous anthropologist Margaret Sanger who proclaimed that, “No woman can call herself free who does not own and control her own body.”^[114]  Impliedly, Sanger and others of her view maintain that any restriction over a woman’s right to do with her body as she wishes, under whatever moral or ethical theory, violated that woman’s ownership and control her own body.  Supreme Court decisions in Roe v. Wade^[115] and Planned Parenthood v. Casey^[116] appear consistent with Sanger’s point of view.

With the advancing march of artificial reproductive technological capabilities and the proximity of clinical experimentation in human cloning, there is a compelling need to develop a uniform approach to surrogacy among our states.  If we do not, we’ll perpetuate the absurdity of: in state A, being guilty of committing a felony for assisting a couple contracting to beget their baby; while in an adjacent state B, assisting the couple contracting to beget their baby under a statutorily  regulated positive public policy.   Traditional surrogacy contracting has been pummeled in both the courts and the legislatures.  However, the advent of in vitro fertilization has, fortunately, rendered traditional surrogacy obsolete and unnecessary.  The future lies in gestational surrogacy which has been received favorably in our courts and reasonably favorably, if confusedly, by our legislatures.  It is time for our legislators to awaken to the reality of the promises afforded by gestational surrogacy.

      Part V   A PROPOSED UNIFORM GESTATIONAL SURROGACY ACT

Section I.  Gestational surrogacy occurs when an embryo, not genetically related to the woman in whom implantation of the embryo will occur, is implanted into the uterus of the woman for the purpose of developing the embryo into a fetus and giving birth to a live baby.

Section II.  Gestational surrogacy contracts shall be governed by the contract law of the jurisdiction in which the contract was signed.  A gestational surrogate shall be entitled to reasonable compensation for her services.

Section III.  A gestational surrogacy contract shall be valid and enforceable when, prior to the signing of the said contract and commencement of the in vitro fertilization, a court of general jurisdiction:

a. conducts a hearing at which the interested parties must appear;

b. interviews the parties to the contract and determines that there is an absence of coercion, duress, and exploitation;

c. makes a finding that the parties understand the terms of contract, including the constitutional right of the gestating female to abort the fetus as provided by law.

Section IV.  The court shall appoint an attorney to represent any party claiming insufficient funds.

Section V. The court may order, sua sponte, medical examinations, psychiatric consultations, or other expert evaluations if the court deems these appropriate to a sagacious decision regarding the contract.

Section VI.  If satisfied that the gestational surrogacy contract is in the best interests of the parties, the court shall approve the gestational surrogacy contract.

Once approved by the court, the gestational surrogacy contract shall not be modifiable except by the written consent of every party to the contract and approval by the court.

Contracts under this Act sustain the sagacity of pre-approved gestational surrogacy contracts,^[117] follows the holdings of the Johnson Court, and protects gamete providers from the vicissitudes of a surrogate.  Section I specifies that only contracts involving the implantation of non-genetically related gametic sources have the potential of acquiring enforceability.  This requirement distinguishes traditional surrogacy wherein, as the result of artificial insemination, the surrogate is genetically related to the fetus.  It also distinguishes situations where a genetically related gamete is fertilized in vitro and implanted into the surrogate.  This requirement of no genetic relationship to the implanted embryo is necessary for the Act to be consistent with the important reasoning in Johnson that the gametic providers intend to bring their baby into the world, not to provide a gift of a zygote to the surrogate. 

Admittedly, this requirement restricts a woman from donating her own egg (thereby relinquishing all ownership rights over her ovum) and serving as the surrogate for the zygote product of her in vitro fertilized egg.  However, permitting this exception would blur the distinction between the genetically related traditional surrogate and the non-genetically related gestational surrogate that has characterized courts’ distinguishing the invalidity and enforceability of the contracts.^[118]

Section II’s provision, applying the jurisdiction’s contract law, warrants a party’s protections against adhesion, fraud, etc., which have developed over time and are accepted public policy.  Providing for a gestational surrogate’s reasonable compensation conflicts with the statutes of all four states which provide for the enforceability of gestational surrogacy contracts.^[119]  However, it seems unreasonable to expect the substantial services of surrogacy without providing for compensation.  Compensation should enhance the pool of potential excellent quality surrogates.  Admittedly, compensation opens the specter of commodification and economic exploitation discussed earlier.  I concur with Epstein’s arguments that the critics are but thinly veiled moralists demanding that others behavior conform to their dictates of what is right and wrong.  Epstein points out that moral reasoning alone has been established by the U.S. Supreme Court to be inappropriate and insufficient to sustain a law.^[120]

The Section III’s requirement for a hearing adversely impacts limited and increasingly scarce judicial resources.  However, the importance of the subject matter of the contract and the advantage of an experienced neutral fact finder viewing the demeanor of the parties may well contribute to avoiding prolonged and painful future litigation.  The hearing need not be lengthy.  If the judge deems the parties and the contract reasonable, he may approve it promptly.

Section IV’s provision for appointing an attorney for the surrogate will enhance both fairness and the concept equal representation to avoid economic exploitation.  Section V provides for a court’s sua sponte discretion to obtain expert professional consultation to help the judge more thoroughly evaluate a party when the judge suspects a party’s inappropriate motivation or unsuitability as a surrogate.