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Published online by Cambridge University Press: 24 February 2021
Medical technology is easing the plight of many infertile couples by offering such reproductive alternatives as in vitro fertilization, artificial insemination and surrogacy. In response to the changes in our society's definition of family, wrought by scientific advances, the National Conference of Commissioners on Uniform States Laws promulgated the Uniform Status of Children of Assisted Conception Act. The purpose of this Act is to protect the interests of children born through extraordinary medical procedures. This Note analyzes the Act's provisions regarding surrogacy and focuses on how the Commission's regulatory scheme fails to protect the child's interests. The Act's alternative of voiding the surrogacy contract also does not protect the child's interests. A more complete regulatory scheme which protects the adult parties’ interests, as well as the child's, should be devised, as the adequacy of the adult parties’ protection ultimately affects the child's well-being.
1 Note, Collaborative Baby-Making: Surrogacy and Related Bio-Medical Considerations, 24 WILLAMETTE L. REV. 1100, 1109 (1988). Frozen embryology is a procedure in which human embryos are frozen, stored and later thawed for implantation in a woman's womb.
2 Cohen, , Surrogate Mothers: Whose Baby Is It? 10 AM. J.L. & MED. 243, 244 (1984)Google Scholar (While the infertility rate among couples is generally rising, “in sixty to seventy percent of infertile couples, the infertile partner is female.“).
3 Id. at 245 n.12. The term “adoptable” seems to refer solely to Caucasian babies.
4 Jackson, , Baby M and the Question of Parenthood, 76 GEO. L.J. 1811, 1813 (1988)Google Scholar.
5 L. ANDREWS, BETWEEN STRANGERS: SURROGATE MOTHERS, EXPECTANT FATHERS, & BRAVE NEW BABIES xiv-xv (1989) [hereinafter L. ANDREWS, BETWEEN STRANGERS].
6 In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128 (Ch. Div. 1987), aff’d in part and rev'd in part, 109 N.J. 396, 537 A.2d 1227 (1988).
7 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, 9B U.L.A. Supp. 87 (1988).
8 See infra text accompanying notes 69-74 for a discussion of the bifurcation of the right to procreate and raise children. The assumption in this Note is that infertile couples enter into a surrogacy arrangement in order to have a biologically related child whom they will then raise. The ultimate purpose is to raise the child, and not merely to create a child.
9 Honig, , Baby's Desperate Cry: A Call For Legislative Regulation of Surrogate Mother Contracts, PROB. LJ. 9, 11 (1989)Google Scholar.
10 Id. at 10.
11 ROTHMAN, B., RECREATING MOTHERHOOD: IDEOLOGY AND TECHNOLOGY IN A PATRIARCHAL SOCIETY 231 (1989)Google Scholar.
12 In re Adoption of Baby Girl, L.J., 132 Misc. 2d 972, 974, 505 N.Y.S.2d 813, 815 (Sur. Ct. 1986); Schuck, Some Reflections on the Baby M Case, GEO. L.J. 1793, 1802 (1988).
13 Annotation, Age of Prospective Adoptive Parent as Factor in Adoption Proceedings, 84 A.L.R.3d 665, 669 (1978). While the cases suggest that old age is never the sole reason for rejecting an adoptive couple, it does play a factor in the agency's decision-making process. In light of the fact that as many as 40 couples may be vying for one child, the couples’ ages may make a crucial difference. O'Brien, , The Itinerant Embryo and the Neo-Nativity Scene: Bifurcating Biological Maternity, 1 UTAH L. REV. 1, 5 n.28 (1987)Google Scholar.
14 In re Baby M, 217 N.J. Super. 313, 336, 525 A.2d 1128, 1138-39 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 NJ. 396, 537 A.2d 1227 (1988).
15 In re Baby M, 217 NJ. Super, at 337-38, 525 A.2d at 1139.
16 Id. The Sterns were also informed that adopting a child would be extremely difficult because they were of different religious faiths.
17 ANDREWS, L., BETWEEN STRANGERS, supra note 5, at 18. To date, approximately 1,000 children have been born to surrogate mothers in the United States. NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, SURROGATE PARENTING: ANALYSIS AND RECOMMENDATIONS FOR PUBLIC POLICY 25 (1988)Google Scholar [hereinafter N.Y.S. TASK FORCE].
18 The Bible records the birth of Abraham's son by Hagar, a servant, which occurred because Abraham's wife, Sarah, was infertile. Genesis 16:1-4.
19 B. ROTHMAN, supra note 11, at 229.
20 Wadlington, , Artificial Conception: The Challenge for Family Law, 69 VA. L. REV. 465, 475 (1983)Google Scholar.
21 Andrews, The Aftermath of Baby M: Proposed State Laws on Surrogate Motherhood, HASTINGS CENTER REP., Oct.-Nov., 1987, at 31 [hereinafter Andrews, The Aftermath of Baby M] (quoting KLEEGMAN, S. & KAUFMAN, S., INFERTILITY IN WOMEN 178 (1966)Google Scholar).
22 In re Baby M, 217 N.J. Super. 313, 334, 525 A.2d 1128, 1137-38 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 NJ. 396, 537 A.2d 1227 (1988).
23 In re Baby M, 217 N.J. Super, at 334, 525 A.2d at 1138.
24 Id.
25 Surrogate Parenting Ass'n v. Commonwealth, 704 S.W.2d 209, 210 (Ky. 1986).
26 In re Adoption of Baby Girl, L.J., 132 Misc. 2d 972, 505 N.Y.S.2d 813 (Sur. Ct. 1986).
27 Surrogate Parenting Ass'n, 704 S.W.2d at 210.
28 Id. at 214.
29 Id. at 211-12.
30 In re Adoption of Baby Girl, L.J., 132 Misc. 2d at 974, 505 N.Y.S.2d at 815.
31 Id. at 974, 505 N.Y.S.2d at 815.
32 Id.
33 Id. at 978, 505 N.Y.S.2d at 817-18.
34 In re Baby M, 217 NJ. Super. 313, 525 A.2d 1128 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 N.J. 396, 537 A.2d 1227 (1988).
35 In re Baby M, 217 N.J. Super, at 345, 525 A.2d at 1143. Mary Beth Whitehead was artificially inseminated with William Stern's sperm. The woman who bears the child is the biological mother and the sperm donor is the biological father. Collectively, they are the biological parents. The infertile couple is also referred to as the intended parents.
36 Id. at 347, 525 A.2d at 1144.
37 Id. at 335-36, 525 A.2d at 1138-39.
38 Id. at 349, 525 A.2d at 1145.
39 Id. at 408-09, 525 A.2d at 1175-76.
40 In re Baby M, 109 N.J. 396, 430, 537 A.2d 1227, 1244 (1988).
41 Id. at 451, 537 A.2d at 1255.
42 In re Baby M, 217 N.J. Super, at 371-73, 525 A.2d at 1157-58.
43 Cohen, supra note 2, at 257.
44 N.Y.S. TASK FORCE, supra note 17, at 61.
45 Id. at 63.
46 U.S. CONST, amend. XIII.
47 Pollack v. Williams, 322 U.S. 4, 18 (1944).
48 Stevens v. Marks, 383 U.S. 234, 244 (1966).
49 Brady v. United States, 397 U.S. 742, 749 (1970).
50 N.Y.S. TASK FORCE, supra note 17, at 124.
51 Jackson, supra note 4, at 1818-19.
52 N.Y.S. TASK FORCE, supra note 17, at 63-64.
53 Suh, , Surrogate Motherhood: An Argument for Denial of Specific Performance, 22 COLUM. J.L. & Soc. PROBS. 357, 377 (1983)Google Scholar.
54 UNIF. PARENTAGE ACT § 5(b), 9B U.L.A. 287, 301 (1973). At least thirty states have passed artificial insemination by donor (AID) laws which facilitate the practice. E.g., ALA. CODE § 26-17-21 (1989); ALASKA STAT. § 25.20.045 (1989); CAL. CIVIL CODE § 7005 (Deering 1990). AID debates continue, however, and the continued acceptability of AID is questionable. Andrews, The Aftermath of Baby M, supra note 21, at 31.
55 Jackson, supra note 4, at 1825 n.35. (“Since the sperm donor who lacks the prebirth intent to be a parent is considerably less involved in and important to the gestational process, … both the moral and practical considerations supporting a view of the donor as a ‘parent’ are somewhat less compelling.“).
56 Steinbock, , Surrogate Motherhood as Prenatal Adoption, 16 L. MED. & HEALTH CARE 44, 49 (1988)Google Scholar. See also Stanley v. Illinois, 405 U.S. 645 (1972) (natural father had the right to raise his illegitimate children). While the Court has recognized the father's fundamental right, the right is neither irrevocable nor inalienable. See Lehr v. Robertson, 463 U.S. 248 (1983) (natural father could not assert right as a parent because he had failed to take custody of or to support his illegitimate child); Quilloin v. Walcott, 434 U.S. 246 (1978) (same holding as Lehr). Although these cases focus on the specific nature of the father-child relationship, they could easily also apply to the nature of the mother-child relationship. Thus, just as a father may forfeit his parental rights, a mother may as well. A mother's fundamental right to raise her child may not be as irrevocable as those opposing surrogacy claim it is.
57 N.Y.S. TASK FORCE, supra note 17, at 89 (“[M]any feminist groups and other organizations reject the notion that women can make an informed choice prior to a child's conception and birth.“); Jackson, supra note 4, at 1818-19 (“Given the changes in feeling that we know frequently occur, and that we generally want to occur, during pregnancy and at birth, the informed voluntariness of the choice to give up the child is at its peak when made with full awareness of the pain entailed — after the child comes into being.“); Macklin, Is There Anything Wrong With Surrogate Motherhood? An Ethical Analysis, 16 L. MED. & HEALTH CARE 57, 60 (1988) (“[I]t has been argued that no one is capable of granting truly informed consent to be a surrogate mother. This argument contends that even if a woman has already borne children, she cannot know what it is like to have to give them up after birth.“); Suh, supra note 53, at 379 (“Because of the nature of the bonding process … a birthmother cannot make a ‘knowing’ or ‘informed’ waiver of her parental ties prior to birth.“).
In a recent case, a California judge declined to find that any psychological bond that may form between a gestational mother and the child she is carrying overrides the genetic interests of the intended parents. Johnson v. Calvert (Orange County Superior Ct., Cal. Oct. 22, 1990). See Surrogate Denied Custody of Child, N.Y. Times, Oct. 23, 1990, at A14, col. 1. In this case, both the egg and the sperm were donated by the intended parents, the Calverts, and the surrogate, Anna Johnson, was impregnated through in vitro fertilization. Surrogate Denied Custody of. Child, supra.
The decision turned on the parties’ genetic relatedness to the child. Because the judge found that Mrs. Johnson was a “genetic stranger” to the baby, she “did not acquire genetic rights to claim parenthood through her surrogacy.” Id. at col. 2. The judge further held that “the relevance of the gestational environment within the womb is not clear.” Id. By so holding, the judge implicitly rejected the arguments posed by opponents to surrogacy that the surrogate's psychological bond to the child outweighs the genetic claims usually held by the intended father.
The California court held that the best interests of the child lay in having only one mother. Judge Parslow stated that he “decline[d] to split the child emotionally between two mothers,” and that the child would be “confused if such a relationship were allowed to continue.” Id.
58 Andrews, , Surrogate Motherhood: The Challenge for Feminists, 16 L. MED. & HEALTH CARE 72, 76 (1988)Google Scholar [hereinafter Andrews, The Challenge for Feminists]; Schuck, supra note 6, at 1799. See also Macklin, supra note 57, at 60 (“Feminists who oppose surrogacy presume to speak for all women. But what they are really saying is that those who elect to enter surrogacy arrangements are incompetent to choose and stand in need of protection.“).
59 Andrews, The Challenge for Feminists, supra note 58, at 76.
60 Id. at 75.
61 Eisenstadt v. Baird, 405 U.S. 438, 453 (1971). See also Stanley v. Illinois, 405 U.S. 645, 651 (1972); Skinner v. Oklahoma, 316 U.S. 535 (1942); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Cohen, supra note 2, at 256.
62 Robertson, , Procreative Liberty, 69 VA. L. REV. 405, 428 (1983)Google Scholar.
63 Because the controversy to date has involved the rights of infertile married couples, the analysis is limited to the rights of these couples.
64 Robertson, supra note 62, at 429.
65 Id.
66 Kimbrell, , The Case Against the Commercialization of Childbearing, 24 WILLAMETTE L. REV. 1035, 1049 (1988)Google Scholar.
67 Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977). See supra note 61 for the line of Supreme Court cases that protect the right to bear and beget children.
68 N.Y.S. TASK FORCE, supra note 17, at 61.
69 Robertson, supra note 62, at 417.
70 Several Supreme Court decisions have noted, in dicta, that child rearing is a constitutionally protected right. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 652 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 n.13 (1972).
71 In re Baby M, 109 N.J. 396, 448, 537 A.2d 1227, 1253 (1988).
72 Id.
73 Id. at 448-49, 537 A.2d at 1254.
74 Id. at 458-59, 537 A.2d at 1258.
75 As one legal scholar noted, “[t]he risk of subsequent regret is the price we pay for our commitment to personal autonomy and responsibility in the face of uncertainty.” Schuck, supra note 12, at 1799.
76 Andrews, The Aftermath of Baby M, supra note 21, at 31.
77 In re Baby M, 217 N.J. Super. 313, 388, 525 A.2d 1128, 1165 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 N.J. 396, 537 A.2d 1227 (1988).
78 Comment, Baby-Sitting Consideration: Surrogate Mother's Right to “Rent Her Womb” For a Fee, 18 GONZ. L. REV. 539, 558 (1982-83).
79 L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1564 (1988).
80 Craig v. Boren, 429 U.S. 190, 197 (1976).
81 Caban v. Mohammed, 441 U.S. 380, 391 (1978).
82 Id. at 394. The Court found that New York's statute: discriminate[s] against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children.
Id.
In the surrogate context, the biological father (husband of the infertile wife), has demonstrated his “significant paternal interest” in any resulting child. By unilaterally prohibiting the surrogacy arrangement, and awarding the surrogate mother automatic custody of the child, it can be argued that the state has determined that the biological father's interest in the fate of the child is less compelling than the surrogate mother's interest. This reasoning conflicts with the Caban holding.
83 L. TRIBE, supra note 79, at 1565. The line of Supreme Court cases is: Reed v. Reed, 404 U.S. 71 (1971) (invalidated gender distinction as to who can administer a decedent's estate); Frontiero v. Richardson, 411 U.S. 677 (1973) (invalidated statute that deemed spouses of male armed forces members, but not spouses of female members, as “dependents” for benefits purposes); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (struck down Social Security Act provision that distinguished between widows and widowers with dependent children); Stanton v. Stanton, 421 U.S. 7 (1975) (invalidated statute that specified parental support obligations based on gender of the child); Craig v. Boren, 429 U.S. 190 (1976) (invalidated statute that based sale of 3.2% beer on gender); Califano v. Westcott, 443 U.S. 76 (1979) (struck down Social Security Act provision for unemployment benefits on the basis of gender); Orr v. Orr, 440 U.S. 268 (1979) (invalidated statute that imposed alimony obligations solely on men); Kirchberg v. Feenstra, 450 U.S. 455 (1981) (invalidated statute which gave the husband unilateral right to dispose of jointly held property); Caban v. Mohammed, 441 U.S. 380 (1979) (struck down adoption statute that distinguished rights between unwed mothers and unwed fathers).
84 Weinberger, 420 U.S. at 652.
85 Comment, supra note 78, at 558 (citing Reed v. Reed, 404 U.S. 71, 76 (1971)).
86 Wadlington, supra note 20, at 475-76.
87 Steinbock, supra note 56, at 49.
88 In re Baby M, 109 N.J. 396, 450, 537 A.2d 1227, 1254 (1988).
89 Id.
90 Andrews, The Challenge for Feminists, supra note 58 at 74 (“Symbolic arguments and pejorative language seem to make up the bulk of the policy arguments … . “ ) ; Macklin, supra note 57, at 57 (“Many health professionals and academics confess to having strong feelings against surrogacy, but remain unable to come up with a rational position in defense of their view.“).
91 B. ROTHMAN, supra note 11, at 243-44.
92 Andrews, The Challenge for Feminists, supra note 58, at 74.
93 N.Y.S. TASK FORCE, supra note 17, at 73 (citing Robertson, , Embryos, Families, and Promotive Liberty: The Legal Structure of the New Reproduction, 59 S. CAL. L. REV. 939, 1040 (1986)Google Scholar).
94 Andrews, The Challenge for Feminists, supra note 58, at 74. In contrast, 75% of the mothers who put their children up for adoption change their minds and keep the child. Id. at 76.
95 L. ANDREWS, BETWEEN STRANGERS, supra note 5, at 241.
96 Id. at 235.
97 In re Baby M, 217 N.J. Super. 313, 371, 525 A.2d 1128, 1157 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 NJ. 396, 537 A.2d 1227 (1988).
98 In re Baby M, 109 N.J. 396, 434-35, 537 A.2d 1227, 1246 (1988).
99 See, e.g., UNIF. PARENTAGE ACT § 5(a) 9B U.L.A. 287, 301 (1973) (“If… with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.“). No mention is made of parental fitness.
100 In re Baby M, 109 N.J. at 435, 537 A.2d at 1246-47.
101 Id. at 435, 537 A.2d at 1247.
102 N.Y.S. TASK FORCE, supra note 17, at 75.
103 Robertson, supra note 62, at 419 n.36.
104 Id.
105 N.Y.S. TASK FORCE, supra note 17, at 79.
106 Id. at 79-80.
107 In re Baby M, 217 N.J. Super. 313, 372, 525 A.2d 1128, 1157 (Ch. Div. 1987), aff'd in part and rev ‘d in part, 109 NJ. 396, 537 A.2d 1227 (1988).
108 In re Baby M, 109 N.J. at 438, 537 A.2d at 1248.
109 Id. at 440, 537 A.2d at 1249. N.Y.S. TASK FORCE, supra note 17, at 25.
110 L. ANDREWS, BETWEEN STRANGERS, supra note 5, at 242.
111 Id. at 33.
112 Id.
113 Parker, , Surrogate Motherhood, Psychiatric Screening and Informed Consent, Baby Selling, and Public Policy, 12 BULL. AM. ACAD. PSYCHIATRY L. 21, 33 (1984)Google Scholar [hereinafter Parker, Surrogate Motherhood, Psychiatric Screening]. Dr. Parker's findings are based on interviews with over 250 surrogate mother applicants.
114 Id. at 33-34.
115 Id. at 34.
116 L. ANDREWS, BETWEEN STRANGERS, supra note 5, at 236.
117 In re Baby M, 217 N.J. Super. 313, 372, 525 A.2d 1128, 1157 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 N.J. 396, 537 A.2d 1227 (1988).
118 In re Baby M, 217 NJ. Super, at 372, 525 A.2d at 1157.
119 Id.
120 A private placement adoption is an adoption that is achieved without the participation of a state-approved adoption agency. See, e.g., Sees v. Baber, 74 N.J. 201, 212, 377 A.2d 628, 634 (1977).
121 In re Baby M, 109 N.J. at 422, 537 A.2d at 1240. It is illegal in most states to pay for the adoption of a child beyond reimbursement for medical expenses and fees of a state-approved agency. Kimbrell, supra note 66, at 1037.
122 Parker, Surrogate Motherhood, Psychiatric Screening, supra note 113, at 34.
123 In re Baby M, 217 N J . Super, at 372, 525 A.2d at 1157.
124 Id.
125 Id. Baby M, 109 N.J. at 422, 537 A.2d at 1240.
126 In re Baby M, 217 N.J . Super, at 373, 525 A.2d at 1158.
127 Note, The Rights of the Biological Father: From Adoption and Custody to Surrogate Motherhood, 12 VT. L. REV. 87, 107 (1987).
128 Steinbock, supra note 56, at 49.
129 Id. at 50.
130 In re Baby M, 217 N.J. Super, at 373, 525 A.2d at 1158.
131 Id.
132 The surrogacy arrangement is not necessarily beyond the economic reach of poor women. It is possible to find surrogates who are willing to help the infertile couple for medical expenses and miscellaneous costs. See, e.g., infra note 134 and accompanying text. Another alternative is a surrogate arrangement between relatives. See Macklin, supra note 57, at 57 (South African grandmother served as surrogate for own daughter's biological twins).
133 In re Baby M, 109 N.J. 396, 439-40, 537 A.2d 1227, 1249 (1988).
134 L. ANDREWS, BETWEEN STRANGERS, supra note 5, at 19-20.
135 Steinbock, supra note 56, at 50.
136 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, 9B U.L.A. Supp. 87 Historical Note (1988).
137 Goldberg, Surrogacy Act Passed, A.B.A. J., Apr., 1989, at 128.
138 Chairman, Drafting Committee, National Conference of Commissioners on Uniform State Laws, Committee on the Status of Children of Assisted Conception.
139 Reporter, National Conference of Commissioners on Uniform State Laws, Committee on the Status of Children of Assisted Conception.
140 Robinson, & Kurtz, , Uniform Status of Children of Assisted Conception Act: A View from the Drafting Committee, 13 NOVA L. REV. 491, 492 (1989)Google Scholar.
141 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, § 1(4).
142 Id. at § 1(3).
143 Id. at § 1(1).
144 This Note also covers both types of surrogacy. See supra note 20 and accompanying text.
145 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, Alternative A.
146 Id. at Alternative B.
147 Robinson & Kurtz, supra note 140, at 493.
148 Id. at 501.
149 Id.
150 Id. at 494.
151 UNIF. STATUS or CHILDREN OF ASSISTED CONCEPTION ACT, § 5(a).
152 See infra notes 162-64 and accompanying text for discussion of court approval.
153 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, § 5(b).
154 Id.
155 UNIF. PARENTAGE ACT, 9B U.L.A. 287 (1973).
156 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, § 5(b).
157 UNIF. PARENTAGE ACT, § 5(a).
158 Id. at §5(b).
159 In this case, it is presumed that the biological father, the sperm donor, is the husband of the infertile couple. This is the usual scenario in the surrogacy arrangement. Even if he is not the sperm donor, the contract would still provide evidence of the parties’ intent to have the infertile couple gain complete custody of the child.
160 UNIF. PARENTAGE ACT, §§ 4(a)(5), 6(b)-(d).
161 See In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 N.J. 396, 537 A.2d 1227 (1988).
162 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, § 6(a).
163 Id.
164 Section 6(b) of the Uniform Status of Children of Assisted Conception Act lists 10 factors which a court should consider before approving the surrogacy agreement:
(1.) the court has jurisdiction and all parties have submitted to its jurisdiction under subsection (e) of this Section and have agreed that the law of diis State shall govern all matters rising under this [Act] and the agreement;
(2.) the intended mother is unable to bear a child or is unable to do so without unreasonable risk to the unborn child or to the physical or mental health of the intended mother or child. This finding must be supported by medical evidence;
(3.) the [relevant child welfare agency] has made a home study of the intended parents and the surrogate and a copy of the report of the home study has been filed with the court;
(4.) the intended parents, the surrogate, and the surrogate's husband, if any, meet the standards of fitness applicable to adoptive parents in this State;
(5.) all parties have voluntarily entered into the surrogacy agreement and understand its terms and the nature, meaning, and effect of the proceeding;
(6.) the surrogate has had at least one pregnancy and delivery and bearing another child will not pose an unreasonable risk to the unborn child or to the physical or mental health of the surrogate or the child. This finding must be supported by medical evidence;
(7.) all parties have received counseling concerning the effect of the surrogacy by [a qualified health-care professional or social worker] and a report containing conclusions about the capacity of the parties to enter into and fulfill the agreement has been filed with the court;
(8.) the results of any medical, psychological, or genetic screening agreed to by the parties or required by law have been filed with the court and made available to the parties;
(9.) adequate provision has been made for all reasonable health care costs associated with the surrogacy until the child's birth including responsibility for such costs in the event of termination under Section 7; and
(10.) the agreement would not be substantially detrimental to the interest of any of the affected persons.
165 Id. at 16(b)(3).
166 Id. at § 6(b)(4).
167 Robinson & Kurtz, supra note 140, at 504.
168 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, § 6(c). This requirement may be modified by the surrogacy contract.
169 Id. at §7(b).
170 Robinson & Kurtz, supra note 140, at 507.
171 Id. at 508.
172 The emphasis here is on the word “legal.” Because states may restrict and even prohibit abortions during the second and third trimesters, the surrogate may not have access to an abortion during all nine months of pregnancy.
173 Roe v. Wade, 410 U.S. 113 (1973), modified, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989). See also Planned Parenthood v. Danforth, 428 U.S. 52, 67-75 (1976) (a woman's interests in the consequences of her pregnancy outweigh those of the father of the fetus).
174 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, § 8(b). As discussed previously, if the surrogate's husband is not a party to the surrogacy agreement, the potential risk of a paternity suit and custody battle is very great. See supra text accompanying notes 154-60.
175 Note, When a Surrogate Mother Breaks a Promise: The Inappropriateness of the Traditional “Best Interests of the Child” Standard, 18 MEM. ST. U.L. REV. 514, 537 (1988).
176 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, Alternative A, § 6(b)(7).
177 As one opponent to surrogacy pointed out, both the Sterns and Mary Beth Whitehead were exploited by the Infertility Center. The Center knew of the psychologist's reservation about whether Mrs. Whitehead would be capable of relinquishing the child, but did not reveal this information to either party. Areen, , Baby M Reconsidered, 76 GEO. L.J. 1491, 1755 (1988)Google Scholar. This type of exploitation can be avoided with direct regulation and precise counseling guidelines.
178 Parker, , Surrogate Motherhood: The Interaction of Litigation, Legislation and Psychiatry, 5 INT'L J. OF L. & PSYCHIATRY 341, 352 (1982)Google Scholar.
179 Id. at 353.
180 L. ANDREWS, BETWEEN STRANGERS, supra note 5, at 23.
181 Parker, Surrogate Motherhood, Psychiatric Screening, supra note 113, at 35.
182 See generally L. ANDREWS, BETWEEN STRANGERS, supra note 5.
183 Id. at 6.
184 Id. at 246-47.
185 UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT, Alternative B, § 5.
186 See supra notes 157-61 and accompanying text.
187 Robinson & Kurtz, supra note 140, at 501.
188 Id. at 493.
189 See In re Baby M, 217 N.J. Super. 313, 334, 525 A.2d 1128, 1137-38 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 N.J. 396, 537 A.2d 1227 (1988).
190 N.Y.S. TASK FORCE, supra note 17, at 75.
191 M., GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8 (1989)Google Scholar.
192 Andrews, The Aftermath of Baby M, supra note 21, at 31.
193 In re Baby M, 217 N.J. Super. 313, 334, 525 A.2d 1128, 1137-38 (Ch. Div. 1987), aff'd in part and rev'd in part, 109 NJ. 396, 537 A.2d 1227 (1988).