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Baby M Turns 30: The Law and Policy of Surrogate Motherhood

Published online by Cambridge University Press:  06 January 2021

Eric A. Feldman
Eric A. Feldman*
Affiliation:
University of Pennsylvania Law School
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Abstract

This article marks the 30th anniversary of the Supreme Court of New Jersey's Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be taken to minimize the potential exploitation of women who are willing to rent their wombs for income? Third, what criteria should govern the eligibility to serve as a surrogate mother and an intended parent? Fourth, what principle(s) should serve as the basis for determining the parentage of children born through surrogacy? Fifth, is regulatory uniformity in the surrogacy realm desirable? Is it achievable?

The article concludes that courts and legislatures should accept the validity of surrogacy contracts, determine parentage according to intent, and identify transparent criteria for the eligibility of both surrogates and intended parents.

Type
Articles
Information
American Journal of Law & Medicine , Volume 44 , Issue 1 , March 2018 , pp. 7 - 22
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2018

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References

1 In re Baby M, 537 A.2d 1227 (N.J. 1988).

2 Id. at 1236.

3 Id. at 1234.

4 Id. at 1249.

5 Id. at 1250.

6 Id. at 1249.

7 Surrogacy that uses the surrogate's gamete is called traditional surrogacy, and is now much less common than gestational surrogacy, in which the surrogate mother does not supply a gamete. See Mark Hansen, As Surrogacy Becomes More Popular, Legal Problems Proliferate, ABA Journal Online (Mar. 2011), http://www.abajournal.com/magazine/article/as_surrogacy_becomes_more_popular_legal_problems_proliferate [https://perma.cc/HX9V-CC49].

8 In vitro fertilization (“IVF”) and intracytoplasmic sperm injection are the most common methods.

9 Elizabeth F. Schwartz, LGBT Issues in Surrogacy: Present and Future Challenges, in Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues 55 (E. Scott Sills ed., 2016).

10 Id.

11 For a review of different state approaches, see Susan Markens, Unity, Divisions, and Strange Bedfellows: Divergent Legislative Responses to Surrogate Motherhood, in Surrogate Motherhood and the Politics of Reproduction 139, 139-70 (2007).

12 Johnson v. Calvert, 851 P.2d 776, 783 (Cal. 1993).

13 N.Y. Dom. Rel. Law § 122 (McKinney 2010). Under New York law, parties, “[a] birth mother or her husband, a genetic father and his wife, and, if the genetic mother is not the birth mother, the genetic mother and her husband who violate this section shall be subject to a civil penalty…” N.Y. Dom. Rel. Law § 123 (McKinney 2010).

14 See Ctr. for Bioethics & Culture Network, State-by-State Surrogacy Summary (2012), http://www.cbc-network.org/wp-content/uploads/2012/08/State-by-State_Surrogacy_Sum_CBC.pdf. (detailing surrogacy laws in all fifty states and the District of Columbia).

15 Permanent Bureau of the Hague Conference on Private International Law, Private International Law Issues Surrounding the Status of Children, Including Issues Arising from International Surrogacy Arrangements 11 (2011), https://assets.hcch.net/docs/f5991e3e-0f8b-430c-b030-ca93c8ef1c0a.pdf.

16 Debora L. Spar, The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception 94 (2006).

17 Richard Storrow, Surrogacy: American Style, in Surrogacy, Law and Human Rights 193, 193-216 (Paula Gerber & Katie O'Byrne eds., 2015).

18 See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

19 See Tamar Lewin, Surrogates and Couples Face a Maze of Laws, State by State, N.Y. Times (Sept. 17, 2014), http://www.nytimes.com/2014/09/18/us/surrogates-and-couples-face-a-maze-of-laws-state-by-state.html (“There is nothing resembling a national consensus on how to handle [surrogacy] … and no federal law, leaving the states free to do as they wish.”); Gestational Surrogacy Law Across the United States: State-by-State Interactive Map for Commercial Surrogacy, Creative Family Connections, https://www.creativefamilyconnections.com/us-surrogacy-law-map/ [https://perma.cc/A99U-7JFN].

20 See As Demand for Surrogacy Soars, More Countries Are Trying to Ban It, The Economist (May 13, 2017), https://www.economist.com/news/international/21721926-many-feminists-and-religious-leaders-regard-it-exploitation-demand-surrogacy [https://perma.cc/FPU5-3EEH]; Cheaper Overseas: Surrogate Mothers, ABC News (Sept. 23, 2007), http://abcnews.go.com/GMA/story?id=3664065 [https://perma.cc/54RE-T88R]; see also Darlena Cunha, The Hidden Costs of International Surrogacy, The Atlantic (Dec. 22, 2014), https://www.theatlantic.com/business/archive/2014/12/the-hidden-costs-of-international-surrogacy/382757/ [https://perma.cc/2AQY-VD3H]; Danielle Preiss & Pragati Shahi, The Dwindling Options for Surrogacy Abroad, The Atlantic (May 31, 2016), https://www.theatlantic.com/health/archive/2016/05/dwindling-options-for-surrogacy-abroad/484688/ [https://perma.cc/Q9AH-2Y3W]; Ari Shapiro, Surrogate Parenting: A Worldwide Industry, Lacking Global Rules, NPR (June 11, 2015), https://www.npr.org/sections/parallels/2015/06/11/413406325/surrogate-parenting-a-worldwide-industry-lacking-global-rules [https://perma.cc/A8HZ-VDEM] (detailing the use of surrogates abroad).

21 See Tamara Audi & Arlene Chang, Assembling the Global Baby, Wall St. J. (Dec. 10, 2010), https://www.wsj.com/articles/SB10001424052748703493504576007774155273928; see also Susan Donaldson James, Infertile Americans Go to India for Gestational Surrogates, ABC News (Nov. 7, 2013), http://abcnews.go.com/Health/infertile-americans-india-gestational-surrogates/story?id=20808125 [https://perma.cc/8DLE-MDGR]; Tamar Lewin, Surrogates and Couples Face a Maze of Laws, State by State, N.Y. Times (Sept. 17, 2014), https://www.nytimes.com/2014/09/18/us/surrogates-and-couples-face-a-maze-of-laws-state-by-state.html?_r=0; Douglas Pet, Make Me a Baby As Fast As You Can, Slate (Jan. 9, 2012), http://www.slate.com/articles/double_x/doublex/2012/01/reproductive_tourism_how_surrogacy_provider_planethospital_speeds_up_pregnancies_and_lowers_costs_.html [https://perma.cc/D67N-TL7K] (discussing the lengths some people will go to have a child).

22 Field, Martha, Compensated Surrogacy, 89 Wash. L. Rev. 1155, 1181-82 (2014)Google Scholar (noting that “attempts to forbid surrogacy are likely to result either in travel for surrogacy or in a robust black market…once the public knows that surrogacy can be accomplished as a scientific matter, it will be practiced, legally or illegally”); see also Sheela Saravanan, Addressing Global Inequalities in Surrogacy, in Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues (E. Scott Sills, ed., 2016).

23 Robertson, John A., Other Women's Wombs: Uterus Transplants and Gestational Surrogacy, 3 J.L. & Biosciences 68, 68 (2016).CrossRefGoogle ScholarPubMed

24 See generally, I. Glenn Cohen & Katherine L. Kraschel, Gestational Surrogacy Agreements: Enforcement and Breach, in Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues (E. Scott Sills, ed., 2016) (providing a general discussion of surrogacy contracts and enforcement).

25 Martha Field, Surrogate Motherhood 79 (1988) (stating “it seems unimaginable that the law would enforce a contract to undergo an abortion”).

26 Berk, Hillary L., The Legalization of Emotion: Managing Risk by Managing Feelings in Contracts for Surrogate Labor, 49 L. & Soc'y Rev. 143, 148 (2015).CrossRefGoogle Scholar

27 Field, supra note 25 at 79 (arguing that personal service contracts are not enforceable by specific performance. But once the baby is born, says Field, the idea that a personal service contract cannot be enforced by specific performance is no longer helpful to a surrogate, because performance has been completed, so this would be like the transfer of a completed object).

28 See France Winddance Twine, Outsourcing the Womb (2011) (giving a recent, thoughtful analysis of surrogacy, comparatively).

29 For a detailed argument for how regulating surrogacy can work effectively to protect the interests of intended parents and surrogates, see Laufer-Ukeles, Pamela, Mothering for Money: Regulating Commercial Intimacy, 88 Ind. L.J. 1223, 1227 (2013)Google Scholar (arguing “that in transactions of commercial intimacy such as surrogate motherhood, regulation should be formulated that respects the benefits of commercial transaction while taking seriously the relational intimacy and potential exploitation involved in surrogate motherhood.”).

30 Scott, Elizabeth S., Surrogacy and the Politics of Commodification, 72 L. & Contemp. Probs. 109, 146 (2009).Google Scholar

31 One can imagine a health insurance system that fully covered the costs of surrogacy, and which as a result made such services available regardless of the assets of intended parents. But that is not currently the case.

32 For a detailed examination of surrogacy in India, see generally Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India (2014).

33 Busby, Karen & Vun, Delaney, Revisiting The Handmaid's Tale: Feminist Theory Meets Empirical Research on Surrogate Motherhood, 26 Can. J. Fam. L. 13, 34, 40-41 (2010)Google Scholar. For a thoughtful review of the empirical literature on surrogacy, see Peng, Lina, Surrogate Mothers: An Exploration of the Empirical and the Normative, 21 J. Gender, Soc. Pol'y & L. 555, 560-561 (2013).Google Scholar

34 Allen, Anita L., The Socio-Economic Struggle for Equality: The Black Surrogate Mother, 8 Harv. BlackLetter J. 17 (1991)Google Scholar; see also Ciccarelli, Janice C. & Beckman, Linda J., Navigating Rough Waters: An Overview of Psychological Aspects of Surrogacy, 61 J. Soc. Issues 21, 31 (2005).CrossRefGoogle ScholarPubMed

35 Busby & Vun, supra note 33, at 25.

36 Id. at 46.

37 Pande, supra note 32, at 172-73; Deonandan, Raywat, Recent Trends in Reproductive Tourism and International Surrogacy: Ethical Considerations and Challenges for Policy, 8 Risk Mgmt. & Healthcare Pol'y 111 (2015).CrossRefGoogle ScholarPubMed

38 Normann Witzleb & Anurag Chawla, Surrogacy in India: Strong Demand, Weak Laws, in Surrogacy, Law and Human Rights (Paula Gerber & Katie O'Byrne eds., 2015).

39 Id.

40 Parties to surrogacy arrangements would also be well served by building into their contracts some form of alternative dispute resolution. Litigation may loom as a possibility when relationships sour, but mediation (for example) is likely to be a faster, less costly, and more satisfactory way of handling conflicts. Keeping conflicts out of court will also avoid a sticky jurisdictional issue—whose jurisdiction governs surrogacy contracts, and where should conflicts be litigated.

41 See, e.g., Jennifer A. Parks, Gestational Surrogacy and the Feminist Perspective, in Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues 25 (E. Scott Sills, ed., 2016). Parks contrasts the views of feminist care ethicists and liberal feminists, noting that “there are a number of feminist perspectives on the rising practice of gestational commercial surrogacy (both domestic and international) that lead to differing conclusions about the morality of the practice.”

42 Scott, Elizabeth S., Surrogacy and the Politics of Commodification, 72 L. & Contemp. Probs. 109, 125 (2009)Google Scholar (“The framing of surrogacy as commodification was shaped and promoted by feminists and religious leaders who amplified its social meaning as baby-selling and the exploitation of women. These groups were driven by different ideological and political goals, but they forged an effective political alliance that played an important role in shaping the law for years to come.”).

43 Id. at 112 (“Critics [of surrogate motherhood] claimed that surrogacy degraded children and women by treating children as commodities to be exchanged for profit and women's bodies as childbearing factories; the arrangements also degraded the mother–child relationship by paying women not to bond with their children.”).

44 Cohen, I. Glenn, The Price of Everything, the Value of Nothing: Reframing the Commodification Debate, 117 Harv. L. Rev. 689, 707 (2003).Google Scholar

45 Spar, supra note 16. See Martha Ertman, Rethinking Commodification: Cases and Readings in Law and Culture (2005); Michelle B. Goodwin, Baby Markets: Money and the New Politics of Creating Families, (2010); Margaret Jane Radin, From Babyselling to Boilerplate: Reflections on the Limits of the Infrastructures of the Market, 54 Osgoode Hall L. J. (forthcoming 2017).

46 Who Can Adopt?, Child Welfare Information Gateway (2016), https://www.childwelfare.gov/topics/adoption/adoptive/whocan/ [https://perma.cc/BD4B-8MU8]. Although there are many differences between surrogacy and adoption, when it comes to evaluating who qualifies as a suitable parent, the issues are quite similar.

47 Id.

48 In 1851, Massachusetts was the first state to pass an adoption law. Timeline of Adoption History, The Adoption History Project (2012), http://pages.uoregon.edu/adoption/timeline.html [https://perma.cc/KM53-M3BK].

49 Justice Kennard's dissent in Johnson v. Calvert argues that the best interests of the child standard should be used to determine parentage on a case by case basis. Johnson v. Calvert, 851 P.2d 776, 788-801 (Cal. 1993) (Kennard, J., dissenting). But, it is more useful to rely on that standard when establishing eligibility criteria for intended parents.

50 See, e.g., Celia Burrell & Leroy C. Edozien, The Ideal Surrogate: Santa Claus, Easter Bunny, or Tooth Fairy?, in Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues 9 (E. Scott Sills ed., 2016); Surrogate Mother Requirements, Surrogate Alternatives, https://www.surrogatealternatives.com/surrogate-mothers/surrogate-mother-requirements/ [https://perma.cc/2JNY-MCHT].

51 See Steven H. Snyder, Screening and Qualification of Intended Parents Participating in Third-Party Reproduction, Steven H. Snyder & Associates Attorneys at Law, https://www.snyderlawfirm.com/Articles/Screening-And-Qualification-Of-Intended-Parents-Participating-In-Third-Party-Reproduction.shtml [https://perma.cc/8FYX-TLBK].

52 In re Baby M, 537 A.2d 1227, 1261 (N.J. 1988).

53 Id.

54 Id.

55 Yuri Hibino, Gestational Surrogacy in Japan, in Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues 177 (E. Scott Sills ed., 2016).

56 Id.

57 See id.

58 See id.

59 Id.

60 Aarathi Prasad, How Artificial Wombs Will Change Our Ideas of Gender, Family and Equality, The Guardian (May 1, 2017, 3:00 PM), https://www.theguardian.com/commentisfree/2017/may/01/artificial-womb-gender-family-equality-lamb [https://perma.cc/3UJD-RFFN].

61 Tamar Lewin, Babies from Skin Cells? Prospect Is Unsettling to Some Experts, N.Y. Times (May 16, 2017), https://www.nytimes.com/2017/05/16/health/ivg-reproductive-technology.html.

62 Cohen, I. Glenn, Daley, George Q., and Adashi, Eli Y., Disruptive Reproductive Technologies, 9 Sci. Translational Med. 1, 3 (2017)CrossRefGoogle ScholarPubMed (“IVG's most disruptive impact might be on our very conception of parentage.”),

63 As one author puts it, “[e]ssentially, the law has a choice: faced with new reproductive arrangements, it can recognize and facilitate emerging procreative choice and intentions about parenthood. Or it can cling to definitions and frameworks suited to a different biological and social reality, as did the New Jersey Supreme court in deciding Baby M.” Shultz, Marjorie M., Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 Wis. L. Rev. 297, 397 (1990).Google ScholarPubMed

64 Id. at 397-398.

65 Id. at 397.

66 For two influential articles advocating intent-based parenthood, see Hill, John. H., What Does It Mean to Be a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. Rev. 353 (1991)Google ScholarPubMed; Shultz, supra note 63. For a more critical view of intent as the basis of parenthood, see Storrow, Richard F., Parenthood by Pure Intention: Assisted Reproduction and the Function Approach to Parentage, 53 Hastings L.J. 597 (2002).Google Scholar

67 See Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993)

68 For an insightful historical analysis of parenthood that highlights its social dimensions, see generally NeJaime, Douglas, The Nature of Parenthood, 126 Yale L.J. 2260 (2017).Google Scholar

69 See Debora L. Spar, The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception 94 (2006).

70 New State Ice Co. v. Liebmann, 285 U.S. 262, 387 (1932).

71 Field, supra note 22, at 1180.

72 Id.

73 One way to collect better data about surrogacy would be to require surrogacy agencies to create a database of surrogate mothers and intended parents and follow them from the inception of the surrogacy agreement until the child is ten years old. Surrogacy contracts could require parties to provide certain information during those years, and that information would provide a far better picture of surrogacy than is currently available.

74 Enforcing surrogacy contracts may sometimes be at odds with the preferences of intended parents. If they change their minds and decide they do not want the child they bargained for (perhaps they do not want a child with a particular type of genetic defect, for example), they will still have to keep their end of the bargain, meaning that they must accept the child and tender full payment for the surrogacy arrangement.

75 Field, supra note 22, at 117 (arguing that uniform state laws are not necessary because the Full Faith and Credit Clause of the US Constitution guarantees that a “parent-child relationship established and recognized in one state must be respected in other states,” so the uniform “recognition of parent-child relationships is assured even while states pursue different surrogacy policies”).

76 In re Marriage of Buzzanca, 72 Cal. Rptr. 280, 293 (Cal.Ct. App. 1998).

77 Some scholars have argued that a more uniform approach to surrogacy could come from constitutional law, arguing that there is a constitutional right to surrogacy. Such arguments have generally been met with skepticism or disinterest. See Robertson, supra note 23. Field and others rejects claim that there is a constitutional right to surrogacy. Field, supra note 22, at 1177.

78 Id. at 1176 n.120. See Commercialized Childbearing Act of 1989, H.R. 1188, 101st Cong. (1998); Anti-Surrogate Mother Act of 1989, H.R. 576, 101st Cong. (1989); Surrogacy Arrangements Act of 1989, H.R. 275, 101st Cong. (1989); Anti-Surrogate Mother Act of 1987, H.R. 3264, 100th Cong. (1987); Surrogacy Arrangements Act of 1987, H.R. 2433, 100th Cong. (1987).

79 R. Alta Charo, Legislative Approaches to Surrogate Motherhood, in Surrogate Motherhood: Politics and Privacy 88-119 (Larry Gostin ed., 1990).

80 Id.

81 See Draft ABA Model Surrogacy Act, 22 Fam. L. Q. 123 (1988).

82 Id.; Joseph Gitlin, H., Family Law Section Approves Model Surrogacy Act: A Comment, 22 Fam. L. Q. 145 (1988).Google Scholar The Act leaves open a number of important questions. Is $7,500 the base fee, or might a lower fee be acceptable? Why would the cost sometimes be $7,500, and other times $12,500? Is the fee set on a case by case basis, or categorically? Would it be acceptable for intended parents to pay a premium for certain types of surrogates, like those who are young, have good dietary habits, are in particularly good health, or are of a particular race or ethnicity?

83 A.B.A, Model Act Governing Assisted Reproductive Technology (2008), https://www.americanbar.org/content/dam/aba/publishing/family_law_quarterly/family_flq_artmodelact.authcheckdam.pdf. The Act also includes detailed eligibility criteria for both surrogates and intended parents.

84 Nat'l Conference of Comm'n on Unif. State Laws, Uniform Parentage Act §§ 801-809 (2017), http://www.uniformlaws.org/shared/docs/parentage/2016AM_AmendedParentage_Draft.pdf.

85 Id.

86 The Parentage/Surrogacy Project, Hague Conference on Private International Law https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy [https://perma.cc/DTH8-VFA9].

87 A.B.A., Resolution, Section of Family Law Section of Real Property, Trust and Estates Law, Section of Science and Technology Law, https://www.americanbar.org/content/dam/aba/uncategorized/family/Hague_Consideration.authcheckdam.pdf.

88 It did, however, voice support for the determination of parentage based on intent, which it saw as an important step in harmonizing laws involving parentage and citizenship. Id.