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Surrogate Mothers: Whose Baby Is It?

Published online by Cambridge University Press:  24 February 2021

Barbara Cohen
Barbara Cohen*
Affiliation:
University of Colorado, 1979; Boalt Hall School of Law, University of California, 1984
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Abstract

Advances in medical technology offer infertile couples who wish to raise children alternatives to adoption. The increasing number of surrogate mother contracts creates a myriad of legal issues surrounding the rights of the natural mother, the natural father and die child that is produced. In this Article, the Author discusses the legal issues and rights of the parties under the Constitution, the surrogate contract and family law principles. The Author proposes that courts should consider a surrogate contract as a revocable prebirdi agreement which allows the natural mother to keep the child if she chooses. In addition, die Audior advocates an interpretation of the statutes forbidding baby selling that would prohibit surrogate contracts in which the mother is paid a fee for the child.

Type
Articles
Information
American Journal of Law & Medicine , Volume 10 , Issue 3 , Fall 1984 , pp. 243 - 285
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1984

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Footnotes

The Author is currently an associate with Bonjour & Gough, Hayward, California.

References

1 This Article will not discuss the legal implications of in vitro fertilization.

2 William Handel, an attorney who handles surrogate contracts in southern California, states that “approximately $12,000 is paid to the surrogate.” Sherwyn & Handel, Surrogate Parenting, General Information 1 (May 1983) (leaflet); see also Avery, , Surrogate Mothers: Center of a New Storm, U. S. NEWS & WORLD REP., June 6, 1983, at 76.Google Scholar

3 See N., KEANE & D., BREO, THE SURROGATE MOTHER 12 (1981)Google Scholar (“By the end of 1981, there will be about a hundred children born to surrogate mothers and adopted by others.“); Smith, , The Perils and Peregrinations of Surrogate Mothers, 1 MED. & L. 325 (1982)Google Scholar (“It is thought that several hundred women are currently, or have been, fulfilling roles as surrogate mothers.“); cf Parker, , Surrogate Motherhood: The Interaction of Litigation, Legislation and Psychiatry, 5 INT'L J.L. & PSYCHIATRY 341, 352 (1982)CrossRefGoogle Scholar (author personally interviewed “over 250 surrogate applicants“).

4 Stephen, , A Young Couple's Search for a Surrogate Mother, San Francisco Chron., Apr. 2, 1984, at 19, col. 1.Google Scholar

5 Sappideen, , The Surrogate Mother—A Growing Problem, 6 U. NEW S. WALES L.J. 79, 81 (1983)Google Scholar; see also Roberston, , Surrogate Mothers: Not So Novel After All, 19 HASTINGS CENTER REP, Oct. 1983, at 28Google Scholar (“[R]epeated attention on Sixty Minutes and the Phil Donahue Show and in popular press is likely to engender more demand, for thousands of infertile couples might find surrogate mothers the answer to their reproductive needs.“).

6 Griffin, , Womb for Rent, 9 STUDENT LAW., Apr. 1981, at 29Google Scholar; Handel, & Sherwyn, , Surrogate Parenting, 18 TRIAL 57, 58 (1982)Google Scholar.

7 In recent years, the availability of adoptable babies has decreased dramatically. In 1982, 100,000 babies were adopted. In 1970, there were 175,000 babies adopted. See Avery, supra note 2, at 76. This decrease is attributable to four factors. First, effective birth control is readily available and more socially acceptable than ever before. Second, in 1973, the United States Supreme Court held that a woman's right to choose to have an abortion was fundamental, and at least during the first trimester, could not be prohibited by the state. Roe v. Wade, 410 U.S. 113 (1973). Third, changing social morality has made it more acceptable for a single woman to choose to keep her child. Fourth, an increase in infertility has caused more people to adopt. See generally Handel & Sherwyn, supra note 6, at 58; Harris, , Artifical Insemination and Surrogate Motherhood—a Nursery Full of Unresolved Questions, 17 WILLAMETTE L. REV. 913 n.2 (1981)Google Scholar; New Bedfellows: Freedom and Infertility, Sci. NEWS, May 31, 1980, at 341.

8 In 1975, it was estimated that a couple would wait three to seven years to adopt an infant. Adoption & Foster Care, 1975: Hearings on Baby Selling, Before the Subcomm. on Children and Youth of the Senate Comm. on Labor and Public Welfare, 94th Cong., 1st Sess. 6 (1975) [hereinafter cited as Adoption & Foster Care]. The shrinking availability of adoptable babies in concert with the increasing number of couples seeking adoption, is likely to have lengthened the wait for most couples. Griffin, supra note 6; see also Erickson, , Contracts to Bear a Child, 66 CAL. L. REV. 611, 611 (1978)CrossRefGoogle Scholar; Handel & Sherwyn, supra note 6.

9 Single individuals or nonmarried couples (homosexual or heterosexual) might seek to engage in one of these alternatives. The right of singles or homosexual couples to participate in these new technologies is not within the scope of this Article. The terms husband and wife are used herein to describe the infertile couple.

10 In 1979, it was estimated that 250,000 Americans were conceived by artificial insemination. Each year in the United States 6,000-10,000 children are born as a result of AID. Black, , Legal Problems of Surrogate Motherhood, 16 NEW ENG. L. REV. 373, 375 (1981)Google Scholar.

11 Griffin, supra note 6, at 29; New Bedfellows: Freedom and Infertility, supra note 7, at 341.

12 It has been argued that the couple's desire for a Caucasian child is indicative of racism. Since many children remain unadopted, the implication is that if surrogate parenting were illegal more of these children would be adopted. See generally Blakely, Ms MAGAZINE, Mar. 1983, at 18; Rushevsky, , Legal Recognition of Surrogate Gestation, 7 WOMEN's RIGHTS L. REP. 107, 114-15 (1982)Google Scholar. Rushevsky argues, though, that “hard-to-place” children are unlikely to be adopted even if surrogate parenting were illegal. Id. at 114.

Additionally, there is the question of who should be allowed to become parents through this process. Fees paid to the surrogate may be as high as $12,000. The total costs (fees and medical expenses) incurred by the contracting couple may range from $27,000 to $32,000. Sherwyn & Handel, supra note 2, at 1. Others sources state that these costs may range up to $25,000. See Robertson, supra note 5, at 29; Stephen, supra note 4 at 19, col. 2.

Other moral questions raised by surrogate contracts include: Under what circumstances is it appropriate for a couple to seek a surrogate? Must the woman be infertile? What if the adopting mother simply doesn't want to be pregnant? This Article does not address the many moral issues raised by surrogate agreements.

13 For a detailed analysis of ethical problems that lawyers face, see Flickinger, , Surrogate Motherhood: The Attorney's Legal and Ethical Dilemma, 11 CAP. U.L. REV. 593 (1981-82)Google Scholar.

14 This Article will analyze many of these legal issues.

15 See infra notes 145-46 and accompanying text.

16 Denise Thrane Bhimani contracted with James Noyes, agreeing to be artificially inseminated with Mr. Noyes’ sperm and to relinquish the child at birth. Ms. Bhimani was not paid a fee for agreeing to act as surrogate; however, her expenses were paid. Nat. L.J., Apr, 6, 1981, at 4, col. 4. See also Morrow, , Surrogate Mother Gets Custody of Fought-Over Child, Los Angeles Daily J., June 5, 1981, at 1, col. 2.Google Scholar

17 Nat. L. J., supra note 16, at 4, col 6. No reason was given for her decision to breach, however, and when the case was settled in her favor, Ms. Bhimani stated that “I'm happy, I love the baby.” Morrow, supra note 16, at 1, col. 2.

18 Lewis, , Surrogate Mothers Pose Issues for Lawyers, Courts, Los Angeles Daily J., Apr. 20, 1981, at 7, col. 2.Google Scholar Keane “chose to rely on the paternity action because he believe[d] the contract theory [would] not prevail in court. ‘There probably was no contract; and, even if there was it's probably not enforceable,’ Keane explained.” Id.

19 Id. In order to establish paternity, Mr. Keane would have had to convince the court that the California artificial insemination statute, which treats the donor of semen as if he were not the natural father of the child conceived, should not apply to the case at hand. See CAL. CIV. CODE § 7005 (West. Supp. 1983); see also infra notes 166-77 and accompanying text.

20 In a custody determination the judge will apply a best interests of the child standard. Mr. Keane, therefore, settled the lawsuit when it was learned that Judge Olson “might have viewed the fact that Mrs. Noyes [was] a transsexual as one factor in the custody decision.” Morrow, supra note 16, at 1, col 2. For an application of the best interest standard in custody disputes, see infra notes 240-56 and accompanying text.

21 Morrow, supra note 16, at 1, col. 2. The case was dismissed without prejudice, and therefore Mr. Noyes could still seek visitation at a later time.

22 Id.

23 William Handel, supra note 2, has stated that he would bring suit against a surrogate mother who breached her contract. Bird, Surrogate Motherhood: Hers1? Yours? Ours?, CALIF. LAW., Feb. 1982, at 21, 24. In the contracts that Handel drafts, the natural mother agrees to be prosecuted for the tort of intentional infliction of emotional distress if she decides not to relinquish her rights to the child. Morris, supra note 16, at 7, col. 4. Handel would also sue the natural mother for custody, breach of contract and fraud. Sherwyn & Handel, supra note 2, at 3.

24 Cf P. Parker, The Psychology of Surrogate Motherhood: An Updated Report of a Longitudinal Pilot Study 8 (report presented at the Interdisciplinary Surrogate Mother Symposium at Wayne State University, Detroit, Nov. 20, 1982, updating Parker, infra note 54) [hereinafter cited as Parker Report] (“[R]egulatory legislation … would help prevent abuse by unscrupulous businessmen who might go to a welfare office with a stack of $100 bills and unduly influence a woman to be a surrogate mother.“).

25 The Kentucky statute prohibits payment for any termination of parental rights. KY. REV. STAT. § 199.520(2) (Supp. 1984); see also infra notes 41-43 and accompanying text.

26 See infra notes 27-65 and accompanying text.

27 See, e.g., CAL. PENAL CODE § 273 (West 1970).

28 See, e.g., id.; MICH. COMP. LAWS ANN. § 710.54 (1983).

29 CAL. PENAL CODE § 273 (West 1970).

30 See, e.g. ARIZ. REV. STAT. ANN. § 8-126(c)(1974); COLO. REV. STAT. § 19-4-115 (1978); DEL. CODE ANN. tit. 13, § 928 (1981); FLA. STAT. ANN. § 72.40(2) (West 1964); IDAHO CODE § 18-1511(1979); I I I . ANN. STAT. ch. 40, §§ 1526, 1701, 1702 (Smith-Hurd 1980); IOWA CODE ANN. § 600.9(2) (West 1981); KY. REV. STAT. § 199.590(2) (Supp. 1984); MASS. GEN. LAWS ANN. ch. 210, § 11A (West Supp. 1984); MICH. COMP. LAWS ANN. § 710.54 (West Supp. 1983); NEV. REV. STAT. § 127.290 (1981); N.C. GEN. STAT. § 48-37 (1976); OKLA. STAT. ANN. tit. 21 § 866 (West 1983); TENN. CODE ANN. § 36-1-135 (1984); UTAH CODE ANN. § 76-7-203 (1978). See generally Note, Surrogate Mothers: The Legal Issues, 7 AM. J.L. & MED. 323, 330 (1981).

31 Note, supra note 30, at 330.

32 Vieth, , Surrogate Mothering: Medical Reality in a Legal Vacuum, 8 J. LEGIS. 140, 145 (1981).Google Scholar

33 See, e.g., Brophy, , A Surrogate Mother Contract to Bear a Child, 20 J. FAM. L. 263, 267 (1982)Google Scholar. Brophy's contracts, however, were designed to be used under a Kentucky statute which provided that payment for consent to adoption was illegal. KY. REV. STAT. § 199.590(2) (1982). The Kentucky legislature subsequently amended the statute to restrict the termination of parental rights. KY. REV. STAT. § 199.590(2) (Supp. 1984).

34 Surrogate Mother Contracts Declared Illegal by Kentucky Attorney General, 7 FAM. L. REP. (BNA) 2246, 2247 (Feb. 17, 1981).

35 Kentucky v. Surrogate Parenting Assoc, Inc., 10 FAM. L. REP. (BNA) 1105-07 (Ky. Cir. Ct. 1983), cited in Surrogate Parenting Agreements Do Not Violate Kentucky Adoption Laws, 10 FAM. L. REP. (BNA) 1105-07 (1983).

36 Id.

37 KY. REV. STAT. § 199.590(2) (1982) (amended 1984). At the time this case arose, the statute provided: “No person, agency or institution not licensed by the cabinet may charge a fee or accept remuneration for the procurement of any child for adoption purposes.” The Attorney General also claimed that the contracts used by SPA violated KY. REV. STAT. § 199.601, which states that no petition for the termination of parental rights may be filed prior to five days after the child's birth. Kentucky v. Surrogate Parenting Assoc, Inc., 10 FAM. L. REP. at 1106. The court held that since the parties agreed in the contract that the natural mother would terminate her parental rights in accordance with Kentucky law, the contract was not illegal. However, the court noted that “[a]ny expression of intent to terminate parental rights made prior to this five day period is non-binding; [the natural mother] is always free to act differently.” Id.

38 Kentucky v. Surrogate Parenting Assoc, Inc., 10 FAM. L. REP. at 1106.

39 Id.

40 Id.

41 KY. REV. STAT. § 199.520(2) (Supp. 1984).

42 The amended statute now provides that “[n]o person, agency, institution, or intermediary may sell or purchase or procure for sale or purchase any child for the purpose of adoption or any other purpose, including termination of parental rights.” KY. REV. STAT. § 199.520(2) (Supp. 1984).

43 See generally Harris, supra note 7, at 946; Rushevsky, supra note 12, at 116 n.64. Accord, Parks v. Parks, 209 Ky. 127, 132, 272 S.W. 419, 422 (1928); Hooks v. Bridgewater, 111 Tex. 122, 131, 229 S.W. 1114, 1118 (1921); see also, CAL. PENAL CODE § 273 (West 1970); CAL. PENAL CODE § 181 (West Supp. 1984); Doe v. Kelley, REP. HUMAN REPROD. L., Jan. 1980, at II-B-15, II-B-19 (Mich. Cir. Ct. Jan 28, 1980), where the court stated that “it is a fundamental principle that children should not and cannot be bought and sold.“

44 WASH. REV. CODE ANN. § 9A.64.030 (Supp. 1984).

45 See, e.g., TENN. CODE ANN. § 36-1-135 (1984); UTAH CODE ANN. § 76-7-203 (1978).

46 UTAH CODE ANN. § 76-7-203 (1978).

47 Moreover, some states have enacted statutes which forbid payment “in consideration of having a person placed in custody.” See, e.g., CAL. PENAL CODE § 181 (West Supp. 1984). Arguably, these statutes were designed to prohibit involuntary servitude, Black, supra note 10, at 379 n.47, and not to prevent surrogate contracting. However, the language used in these statutes indicates a strong public policy against the selling of any person, including children.

48 Doe v. Kelley, REP. HUMAN REPROD. L., Jan. 1980, at II-B-15 (Mich. Cir. Ct. Jan. 28, 1980), aff'd, 106 Mich. App. 169, 307 N.W.2d 438 (1981),cert, denied, 459 U.S. 1183 (1983).

49 Black supra note 10, at 384; Keane, , Legal Problems of Surrogate Motherhood, 1980 S. III. UNIV. LJ. 147, 157 (1980); Note, supra note 30, at 331.Google Scholar

50 Black, supra note 10, at 384.

51 Note, supra note 30, at 330.

52 Black, supra note 10, at 381; Note, supra note 30, at 331.

53 Note, supra note 30 at 331.

54 In 1975, at least 6,709 children given up for adoption were born in wedlock. Adoption & Foster Care, supra note 8. Of the first 50 women who applied for surrogate motherhood in one study, 30 were either working or had a working spouse. Parker, Motivation of Surrogate Mothers:

Initial Findings, 140 AM. J. PSYCHIATRY 117 (1983). These women's total family incomes ranged from $6000 to $55,000. Id.; see also OFFICE OF INFORMATION SYSTEM, NATIONAL CENTER FOR SOCIAL STATISTICS, U.S. DEP't OF HEALTH, EDUCATION & WELFARE, NEW PUB. NO. 5RS 77-03259, ADOPTIONS IN 1975 (1977).

55 While being poor or unmarried may be the predominant reason women give up children for adoption—according to one study, “the most frequent reason [68%] given for relinquishing was that the mother was unmarried and wanted the child to be raised in [a] family,” Pannor, Bara, & Sorksy, , Birth Parents Who Relinquished Babies for Adoption Revisited, 17 FAM. PROCESS 329, 333 (1978)Google Scholar—other women do so because they feel emotionally unprepared for parenthood and are opposed to abortion, or because raising a child would prevent them from finishing school. Id.

56 Women applying to be surrogate mothers gave a number of reasons for their decisions. See Parker, supra note 54, at 118. About one-third of the women in Parker's study had prior losses of children, either through abortion or adoption. Some of these women consciously chose to become surrogate mothers in order to resolve feelings associated with their prior losses; others may have unconsciously had the same motivation. Other reasons given by the women included enjoyment of being pregnant, and the desire to give a gift of life to a couple unable to have their own child. See also Guinzburg, , A Surrogate Mother's Rationale, PSYCH. TODAY, Apr. 1983, at 79Google Scholar.

57 In fact, William Handel, supra note 2, believes that women who are motivated by monetary compensation are less likely to breach the surrogate contract. Lewis, supra note 18, at 7, col. 2. As a result, Mr. Handel will not let a woman into his program unless her sole motivation is money. Id. at 1, col. 6.

58 The degree of “[attachment behaviors to the baby varied greatly from infrequent distant non-involved contacts to frequent and intimate closeness.” See Parker Report, supra note 24, at 5-6; see also Hall, , Surrogate Mother Elizabeth Kane Delivers the ‘Gift of Love’ Then Kisses Her Baby Good-bye, PEOPLE, Dec. 8, 1980, at 53Google Scholar; A Surrogate's Story of Loving and Losing, U.S. NEWS & WORLD REP., June 6, 1983, at 77.

59 See supra notes 23-24 and accompanying text.

60 See supra notes 23-24 and accompanying text.

61 REP. HUMAN REPROD. L,., at II-B-15.

62 Id. at II-B-19. The court noted that the state also has an interest in preventing commericialism from affecting the decision to become pregnant. “Mercenary considerations used to create a parent-child relationship and its impact upon the family unit strikes at the very foundation of human society and is patently amd necessarily injurious to the community.” Id. at II-B-20.

63 Id. at II-B-19, citing In re Shirk's Estate, 186 Kan. 311 (1960).

64 Besides the statutes described above, many states have enacted other statutes which may be implicated by the surrogate contract. An Ohio statute, for example, prohibits advertising for adoptions. This statute states that no person, organization or association which has not been certified “shall advertise that they will adopt children, … hold out inducements to parents to part with their offspring, or in any manner knowingly become a party to the separation of a child from its parents or guardians … .” OHIO REV. CODE. § 5103.17 (1981). The Ohio Attorney General held that this statute applied to an organization that was matching infertile couples with women who were willing to be surrogates. He noted that the statute “absolutely prohibits a person or group from acting to separate a child from the child's parent, without reference to the person to whom the child will be given.” 83-001 Op. Ohio Att'y Gen. 2-1, 2-3 (1983).

65 When a contract provides for the performance of an illegal act, a court will not enforce the contract when one party breaches. J., CALAMARI & J., PERILLO, THE LAW OF CONTRACTS § 22-3, at 781-82 (2d ed. 1977)Google Scholar. The general rule is that illegal contracts are void. Id.

66 See supra notes 27-65 and accompanying text.

67 Some courts have held that before invalidating contracts which require the performance of an illegal act, legislative intent must be considered. Ruelas v. Ruelas, 7 Ariz. App. 98, 101, 436 P.2d 490, 493 (1968); Vic Hansen & Sons, Inc. v. Crowley, 57 Wis. 2d 106, 116-17, 203 N.W.2d 728, 734 (1973); see also Black, supra note 10, at 384-85.

68 An award of damages or restitution would be inadequate because the child for which the parties contract is unique. No monetary award, therefore, would compensate the natural father and his wife for their loss. When the remedy at law is inadequate, specific performance may be appropriate. See J. CALAMARI & J. PERILLO, supra note 65, § 16-1, at 581. However, because of the nature of the surrogate contracts, specific performance should never be granted the father. See infra notes 125-66 and accompanying text.

69 See infra notes 71-87 and accompanying text.

70 See infra notes 117-47 and accompanying text.

71 RESTATEMENT (SECOND) OF CONTRACTS § 178 (1981).

72 J. CALAMARI & J. PERILLO, supra note 65, § 22-1 at 780 (citing Anaconda Federal Credit Union # 4401 v. West, 157 Mont. 175, 178, 483 P.2d 909, 911 (1971)).

73 See generally Vieth, supra note 32, at 145-46.

74 Id.

75 Downs v. Wortman, 228 Ga. 315, 185 S.E.2d 387 (1971); Banvin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957); Fox v. Lasley, 212 Or. 80, 318 P.2d. 933 (1957).

76 Doe v. Kelley, REP. HUMAN REPROD. L., Jan. 1980, at II-B-15; see also supra notes 61-63 and accompanying text.

77 REP. HUMAN REPROD. L., at II-B-15.

78 Id. at II-B-20.

79 For a more detailed discussion of this case, see Cusine, , “Womb Leasing“: Some Legal Implications, 128 NEW L.J. 824 (1978)Google Scholar; The Times (London), June 21, 1978, at 1, col. 8.

80 Vieth, supra note 32, at 148 n.58.

81 Id. at 146.

82 75 N.Y.S.2d 699 (1947).

83 Id. at 701.

84 Vieth, supra note 32, at 146.

85 Id. at 146.

86 While not all surrogate mothers are poor, roughly 40% of the applicants in one study were either unemployed or receiving some form of financial aid. Parker, supra note 54, at 117. The adopting couple, on the other hand, has to be able to put up both the surrogate's fees and the medical expenses associated with her pregnancy. This amount may be as high as $32,000. See supra note 12.

87 Vieth, supra note 32, at 147

88 J . CALAMARI & J. PERILLO, supra note 65, § 22-5 at 785. In addition, both parties may seek custody, visitation rights or termination of the other party's parental rights under family law. See infra notes 148-288 and accompanying text.

89 See infra notes 148-256 and accompanying text for discussion of the custody rights under family law doctrines.

90 Since most contracts withold either all or a large part of the natural mother's fee until the stepparent adoption is completed, the natural father may not lose all the money he intended to pay for the child. See Lewis, supra note 18, at 7, col. 3; Brophy, supra note 33, at 271. In fact, Brophy's contracts specify that none of the fee will be paid until the natural mother terminates her parental rights.

91 Brophy, supra note 33, at 272. The natural father may also be denied restitution if the court analogizes his situation to that of an adopting father. In California, an individual can compensate a pregnant woman for maternity related expenses and living expenses “as long as the payment is not contingent upon placement of the child for adoption, consent to adoption or cooperation in the completion of the adoption.” CAL. PENAL CODE § 273(a) (West 1970); see also FLA. STAT. ANN. § 72.40 (West 1964); UTAH CODE ANN. § 76-7-203 (1978). Any money paid is deemed to be charity. Moreover, the individuals seeking to adopt are at risk that the mother might change her mind and refuse to relinquish her child.

92 Section 5(b) of the Uniform Parentage Act states that: “The donor of semen provided for use in artificial insemination of a married woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived.” This section has been adopted by California, Colorado, Minnesota, Montana, Washington and Wyoming. See CAL. CIV. CODE § 7005 (West 1983); COLO. REV. STAT. § 19-6-106 (1978); MINN. STAT. ANN. § 257.56 (West 1982); MONT. CODE ANN. § 40-6-106 (1982); WASH. REV. CODE ANN. § 26.26.050 (Supp. 1983); WYO. STAT. § 14-2-103 (1978). Although California, Colorado, Washington and Wyoming have eliminated the word “married,” these states’ statutes, nevertheless refer to the woman as “wife” and to the existence of a “husband.” Thirteen other states have passed laws about artificial insemination. ALASKA STAT. § 25.20.045 (1983); ARK STAT. ANN. § 61 l-141(c) (1971); CONN. GEN. STAT. §§ 45-69f to 45-69n (1981); FLA. STAT. § 742.11 (Supp. 1983); GA. CODE§ 74-101.1 (1981); KAN. STAT. ANN. §§ 23-128 to 23-130 (1981); LA. Civ. CODE ANN. art. 188 (West Supp. 1984); N.Y. DOM. REL. LAW § 73 (McKinney 1977); N.C. GEN. STAT. § 49 A-l (1976); OKLA. STAT. ANN-, tit, 10, §§ 551-553 (West Supp. 1983); OR. REV. STAT. § 109.239 (1983); TEX. FAM. CODE ANN. tit. 2, § 12.-03 (Vernon 1975); VA. CODE § 64.1-7.1 (1980). Of these, three have explicitly adopted the UPA stating that the donor has no rights to the child. See, e.g., CONN. GEN. STAT. § 45-69J (1981); OR. REV. STAT. § 109.239 (1981); TEX. FAM. CODE. ANN. tit. 2, § 12.03(b) (Supp. 1981).

93 These statutes would also prevent the state from initiating support proceedings on the child's behalf. If, in law, t he semen donor is not treated as the natural father of the child, neither the mother, the child nor the state would have the right to maintain an action against the donor.

94 Some states have enacted statutes which only legitimate children born through artificial insemination when the woman is married. See, e.g., ALASKA STAT. § 25.20.045 (1983); ARK. STAT. ANN. § 61-141(c) (1971); FLA. STAT. § 742.11 (Supp. 1983); GA. CODE § 74-101.l(a) (1981); KAN. STAT. ANN. § 23-128 to -129 (1981); LA. CIV. CODE ANN. art. 188 (West. Supp. 1984); MD. EST. & TRUSTS CODE ANN. § l-206(b) (1974); N.Y. DOM. REL. LAW § 73(1) (McKinney 1977); N.C. GEN. STAT. § 49 A-l (1976); OKLA. STAT. ANN. tit. 10, §§ 551-553 (West Supp. 1983) TEX. FAM. CODE ANN. tit. 2, § 12.03(a) (Vernon 1975); VA. CODE § 64.1-7.1 (1980).

95 See generally Black, supra note 10, at 387-92; Coleman, , Surrogate Motherhood: Analysis of the Problems and Suggestions for Solutions, 50 TENN. L. REV. 71, 75–82 (1982)Google Scholar; Keane, supra note 49, at 161-66; Phillips, & Phillips, , In Defense of Surrogate Parenting: A Critical Analysis of The Recent Kentucky Experience, 69 KENT. L.J. 877, 917-30 (1980-81)Google Scholar. For a more detailed analysis of the constitutional implications of surrogate contracts, see Rushevsky, supra note 12.

96 Roe v. Wade, 410 U.S. 113, 152 (1973); Griswold v. Connecticut, 381 U.S. 479, 484-85 (1964). Whether or not a right of privacy actually exists in the Constitution is open to question but the Supreme Court has decided numerous cases which afford constitutional protection to certain private decisions. See Roe y. Wade, 410 U.S. at 152, and cases cited therein.

97 See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 70 n.11 (1976); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). In addition, the right “to marry, establish a home and bring up children …” is protected by the Constitution. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

98 See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

99 See supra notes 95-98 and accompanying text.

100 The couple may be considered undesirable by adoption agencies due to their age or lifestyle. If a surrogate child is not available for them, they may buy a baby on the black market. Cf. Adoption & Foster Care, supra note 8, at 16.

101 Carey v. Population Services Intl., 431 U.S. 678, 686 (1977).

102 Roe v. Wade, 410 U.S. at 155. See also Griswold, 381 U.S. at 485.

103 See supra notes 69-87 and accompanying text.

104 106 Mich. App. 169, 307 N.W.2d 438 (1981), cert, denied, 459 U.S. 1183 (1983).

105 Id. at 173, 307 N.W.2d at 441.

106 Id. at 174, 307 N.W.2d at 441.

107 See Coleman, supra note 95, at 79.

108 Id.

109 REP. HUMAN REPROD. L., Jan. 1980, at II-B-15,aff’d, 106 Mich. App. 169, 307 N.W.2d 438 (1981), cert, denied, 459 U.S. 1183 (1983).

110 Id. at II-B-20.

111 J. CALAMARI & J. PERILLO, supra note 65, § 14-4, at 521.

112 See Black, , Legal Problems of Surrogate Motherhood, 16 NEW ENG. L. REV. 373, 392-93 (1980-81)Google Scholar; Note, supra note 30, at 338.

The natural mother might decide to keep the child rather than put it up for adoption with strangers. She may then be entitled to the contract price plus the cost of raising the child, less any benefit gained from raising the child. If the benefit of the child is set equal to the cost of raising it, or if both are dismissed as too speculative, the mother's damages might be limited to the contract price. Note, Surrogate Mothering: Medical Reality in a Legal Vacuum, 8 J . LEGISLATION 140, 148 (1981). She would then be able to sue for support from the natural father under family law. See generally Note, supra note 30, at 338-39.

The natural mother might attempt to claim, upon breach by the couple, that she does not want to raise the child or to place the child with strangers. Since a damage remedy could not compensate her for the couple's refusal to take the child, she might seek specific performance. Nonetheless, a court would not require the couple to take a child they did not want. Clearly that would not be in the child's best interests.

113 Erickson, supra note 8, at 620. The couple might argue, however, that their economic damage is equal to the contract price because that price was the parties’ determination of the value of the child. Hence, a court could hold that upon breach, the natural mother must pay the couple the contract price.

However, the natural mother is unlikely to have such a large sum of money. Even if a damage suit is successful, then it is unlikely that the judgment will be satisfied. Moreover, the couple's primary interest is obtaining the child; they are more likely, therefore, to stress the inadequacy of the damage remedy in order to convince the court that specific performance is appropriate.

114 Where the goods contracted for are unique and substitute performance is unavailable, specific performance may be appropriate. J. CALAMARI & J. PERILLO, supra note 65, § 16.3, at 582. In the surrogate context even if the natural father could find another woman to be a surrogate, he will be denied the unique child he has already fathered.

115 Sec O'Neill v. Spillane, 45 Cal. App. 3d 147, 158-59, 119 Cal. Rptr. 245, 254 (1975).

116 Where restitution is awarded, the natural father receives a return of all fees paid to the surrogate during her pregnancy. Yet even this remedy might be denied. The court might analogize to the adoption laws and hold that all fees paid to the natural mother are not recoverable. See, e.g., CAL. PENAL CODE § 273(a) (West 1970). Any expenses paid for maternity related expenses and living expenses are deemed to be charity and are not recoverable. Alternatively, the court might stress the natural father's biological relationship to the child and hold that the fees he paid were support payments and, therefore, not recoverable. An award of restitution would at least place the natural father in the same position he would have held had he not entered the contract.

117 Calamari & Perillo noted that “the primary remedy is damages … . The next preferred remedy is restitution … .” Where neither of these remedies compensates the plaintiff specific performance may be appropriate. J. CALAMARI & J. PERILLO, supra note 65, § 16-1, at 581.

118 Id.

119 2 J. N., POMEROY, EQUITY JURISPRUDENCE, § 400, at 101 (5th ed. 1941)Google Scholar.

120 CAL. CIV. CODE § 3391 (West 1970).

121 Jacklich v. Baer, 57 Cal. App. 2d 684, 693, 135 P.2d 179, 184 (1943).

122 J . CALAMARI & J . PERILLO, supra note 65 § 16-14, at 596.

123 George Annas, Associate Professor of Law and Medicine at Boston University, stated that “I can't see the court wresting the child out of its natural mother's arms.” Lewis, supra note 18, at 7, col. 2; see also Annas, , Contracts to Bear a Child: Compassion or Commercialism, 11 HASTINGS CENTER REP. 23 (1981).Google Scholar

124 See supra note 58; see also Note, Surrogate Mothering: Medical Reality in a Legal Vacuum, 8 J. LEGIS. 140, 146 (1981).

125 M., KLAUS & J., KENNELL, MATERNAL-INFANT BONDING (1976)Google Scholar.

126 Id. at 42; see also M., KLAUS & J., KENNELL, PARENT-INFANT BONDING 263 (1982)Google Scholar.

127 See generally M. KLAUS & J. KENNELL, supra note 125; M. KLAUS & J. KENNELL, supra note 126, at 263 (1982).

128 M. KLAUS & J . KENNELL, supra note 125, at 46.

129 Id. at 45.

130 Hall, supra note 58, at 53.

131 Id.

132 A Surrogate's Story of Loving and Losing, supra note 58.

133 Id.

134 Keane, supra note 49, at 155; see also Black, , Legal Problems of Surrogate Motherhood, 16 NEW ENG. L. REV. 373, 382 (1980-81)Google Scholar (citing Comment, Contracts to Bear a Child, 66 CAL. L. REV. 611, 613-14 & n.13 (1978)Google Scholar). Note that Mr. Keane discusses the difference between an unwed mother's loss and the loss a surrogate feels. Mr. Keane suggests that an unwed mother can represent a real family for her child, while a surrogate is only a nominal, temporary family. Mr. Keane also notes that unlike a surrogate, an unwed mother may experience guilt and pain over relinquishing her child. These suggestions seem illogical. Prior to and at birth, but subsequent to becoming pregnant, a surrogate is in a very similar situation to a pregnant woman who chooses to give her baby up for adoption. Both women feel attachment to the child and both mourn the loss of their child if they go through with their plan. See Pannor, Baron and & Sorosky, supra note 55, at 331 (“Fifty percent of the birth parents interviewed said that they continued to have feelings of loss, pain, and mourning over the child they relinquished.“).

135 Sherwyn & Handel, supra note 2, at 1.

136 Brophy, supra note 33, at 267.

137 Seesupra notes 58, 130, 123-29 and accompanying text;see also Robertson,supra note 5, at 30. “Relinquishing the baby after birth may be considerably more disheartening and disappointing than [the surrogate] anticipated. Even if informed of this possibility in advance, she may be distressed for several weeks with feelings of loss, depression, and sleep disturbance.“

138 Telephone interview with Donna J. Hitchens, a San Francisco attorney who handles some adoptions (June 4, 1984). Although only a few preadoptive parents will know that a certain child is to be theirs as early as six months before the child's birth, many couples will know as early as four months before the expected birth.

139 It can be argued that, because the intention of the parties in a surrogate arrangement was to create this baby solely for the natural father and his wife, the couple's interest is different than that of a preadoptive couple. Yet, at the time of breach, both sets of hopeful parents are anxiously awaiting the arrival of “their” baby. The natural mother, in both instances, decides that her bond is too strong to abide by her previous decision. Focusing on the interests at the time of the breach, in relation to the agreement entered into by all the parties, the couple seeking to gain a child through a surrogate and the preadoptive couple are similarly situated.

140 See, e.g., CAL. PENAL CODE § 273 (West 1970).

141 Generally, adoption statutes provide that consent is revocable until accepted by the court or that consent will not be accepted until a certain date after the child's birth. See, e.g., KY. REV. STAT. § 199.500 (1982); WASH. REV. CODE § 26.32.1602 (Supp. 1985).

142 See, e.g., CAL. PENAL CODE § 273(a) (West 1970).

143 See, e.g., Coleman, supra note 95, at 113.

144 Keane, supra note 49, at 168.

145 In general, courts do not favor and will not enforce prenatal releases of parental rights or consent to adoptions. See, e.g., In re Adoption of Kruger, 104 Ariz. 26, 30, 448 P.2d 82, 86 (1969). But see In re Adoption of Johnson, 149 Ind. App. 611, 617, 274 N.E.2d 411, 414 (1971) (concerning the father's rather than the mother's prebirth consent).

Furthermore, if the contract is interpreted to be a custodial agreement between two natural parents, the court will not enforce the contract if it is breached. The best interests of the child supersede the contractual agreement between natural parents. See, e.g., Ford v. Ford, 371 U.S. 187 (1962); Puckett v. Puckett, 21 Cal. 2d 833, 136 P.2d 1 (1943); WEJ v. Superior Court, 100 Cal. App. 3d 303, 160 Cal. Rptr. 862 (1979); Allen v. Superior Court, 194 Cal. App. 2d 720, 15 Cal. Rptr. 286 (1961). It is true that the separation agreements regarding child custody are rubber stamped in the courts. See Mnookin, & Kornhauser, , Bargaining in the Shadow of the Law, 88 YALE L.J. 950, 955 (1979)CrossRefGoogle Scholar. However, it may be assumed that in cases where the agreement is rubber-stamped there is no dispute about custody at the time the agreement is reviewed by the courts. If a dispute is raised, the court is willing to examine the child's best interests. For example, in Anderson v. Anderson, 56 Cal. App. 87, 204 P. 426 (1922), the divorcing parties agreed that the wife would have custody of one of the children. Nevertheless, the court ignored the parties’ stipulation and awarded custody of both children to the father. Id. at 88, 204 P. at 427. In Puckett v. Puckett, 21 Cal. 2d 833, 136 P.2d 1 (1943), the divorcing parties agreed that the wife would not have custody of the child and that the child would not be removed from California. On petition to the court the mother asked to be allowed to remove the child from the state. The court held that it could modify the contract between the parties as circumstances required. The child's welfare was held to be of “paramount concern.” Id. at 839, 136 P.2d at 5. For a more detailed analysis of the parties’ rights to custody, see infra notes 220-56 and accompanying text.

146 In the Noyes case, see supra notes 16-22 and accompanying text, the natural mother's lawyer, Mr. Springer, argued that the natural father's contribution to the birth is negligible. He further stated: “Look at the respective contributions … . He lives 3,500 miles away, some frozen sperm is flown out here [and] she suffers through a difficult pregnancy … .” Lewis, supra note 18, at 7, col. 2.

147 See Lewis, supra note 18, at 7, col. 5.

148 See generally CAL. CIV. CODE §§ 7001-7003 (West 1983).

149 CAL. CIV. CODE § 7003 (West 1983).

150 Id. “Nearly every state has a statutory scheme for establishing paternity,” Note, R. McG. & C.W. v. J.W. & W.W,: The Putative Father's Right to Standing to Rebut the Initial Presumption of Paternity, 76 Nw. L. REV. 669, 669 n.4. Under the majority of such schemes, the natural mother's husband is presumed to be the father of the child while the biological father has no standing to claim paternity. Id. at 669.

The circumstances in which the natural father may raise the issue of his paternity vary from state to state. Coleman, , Surrogate Motherhood: Analysis of the Problems and Suggestions for Solutions, 50 TENN. L. REV. 71, 92–93 (1982)Google Scholar.

151 See supra note 100.

152 Sec, e.g., ALASKA STAT. § 25.20.045 (1983); CAL. CIV. CODE § 7005(b) (West 1983); MINN. STAT. ANN. § 257.56(1) (West 1982).

153 CAL. CIV. CODE § 7005(b) (West 1983); COLO, REV. STAT. § 19-6-106(2) (1978); CONN. GEN. STAT. § 45-69J (1981); MINN. STAT. ANN. § 257.56(2) (West 1982); MONT. CODE ANN. §40-6-106(2) (1983); OR. REV. STAT. § 109.239(1) (1981); TEX. FAM. CODE ANN. tit. 2, § 12.03(b) (Vernon 1976); WYO. STAT. § 14-2-103(b) (1977). Note though that the Washington artificial insemination statute specifically provides that the donor is not to be treated as the natural father “unless the donor and the woman agree in writing that the said donor shall be that father.” WASH. REV. CODE ANN. § 26.26.050(2) (Supp. 1984). If all artificial insemination statutes contained this provison, the statutes would not prevent a natural father from establishing his paternity in the surrogate context.

154 See, e.g., MINN. STAT. § 257.56 (West 1982); MONT. CODE ANN. §40-6-106 (1983). Often, the statute does not state that the woman must be married; the statute simply refers to the woman as married. It is unclear whether artificial insemination of single women is authorized.

155 Of the six states that have enacted the UPA section on artificial insemination, only two have adopted this language. See, e.g., MINN. STAT. ANN. § 257.56 (West 1982); MONT. CODE ANN. §40-6-106 (1983).

156 See, e.g., ALASKA STAT. § 20.20.010 (1975); LA. CIV. CODE ANN. art. 188 (West Supp. 1984).

157 See, e.g., CONN. GEN. STAT. §§ 45-69g(a) (1981); GA. CODE § 74-101.1(b) (Supp. 1982).

158 He must also be able to get beyond any presumption of paternity in another man. See infra notes 182-230 and accompanying text.

159 Erikson, supra note 8, at 614.

160 Note, supra note 30, at 343.

161 Note that the Washington statute specifically allows a sperm donor and a woman to agree that he will have parental responsibilities. See WASH. REV. CODE ANN. § 26.26.050(2) (Supp. 1984).

162 See, e.g., CAL. EVID. CODE § 621 (West Supp. 1985); CAL. CIV. CODE § 7004 (West 1983); HAWAII REV. STAT. § 584-84 (1976).

163 See Note, supra note 150, at 669.

164 See, e.g., CAL. EVID. CODE § 621 (West Supp. 1984). Although the presumption is called conclusive when the wife and husband are cohabitating at birth of the child, the statute actually authorizes rebuttal by either the husband or the wife if the issue is raised before the child is two years old. Where the couple is married, but not cohabitating, or the marriage was not valid, the “husband” is presumed to be the father. This presumption can be rebutted by the natural mother, her husband or the child. CAL CIV. CODE §§ 7004, 7006 (West 1983).

165 See, e.g., WASH. REV. CODE ANN. § 26.26.040 (West Supp. 1985); WYO. STAT. ANN. §§ 14-2-101 to -120 (1978); see also Martin v. Martin, 240 A.2d 363, 365 (D.C. 1968).

166 See, e.g., WYO. STAT. ANN. §§ 14-2-101 to -120 (1978). Almost every state has a statutory scheme for establishing paternity. See generally Note, supra note 150; Note, Children Born of the Marriage—Res Judicata Effect on Later Support Proceedings, 45 Mo. L. REV. 307 (1980).

167 Vincent B. v. Joan R., 126 Cal. App. 3d 619, 179 Cal. Rptr. 7 (1981).

168 Id. at 624, 179 Cal. Rptr. at 11.

169 See, e.g., Vincent B., 126 Cal. App. 3d at 619, 179 Cal. Rptr. at 7; R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980); Petitioner F. v. Respondent R., 430 A.2d. 1075 (Del. 1981); A v. X, Y, and Z, 641 P.2d 1222 (Wyo. 1982), cert, denied 459 U.S. 1021 (1982).

170 See supra note 169.

171 Caban v. Mohammed, 441 U.S. 380 (1979); Stanley v. Illinois, 405 U.S. 645 (1972).

172 405 U.S. 645 (1972).

173 Id. at 658. The Court also held that the statute violated the equal protection clause but most of the opinion addressed Stanley's due process rights.

174 Under Illinois law in effect at the time, children of unwed mothers became wards of the state upon their mother's death without regard for any relationship they might have with their father. Id. at 646.

175 Id. at 646-47.

176 Id. at 652.

177 Id. at 657.

178 The Court noted that while it might be true that many unmarried fathers are unfit parents, the state could not, based on its need for efficiency, deprive fit fathers of their right to maintain a relationship with their children. Id. at 654-58.

179 Id. at 658.

180 Petitioner F., 430 A.2d at 1079.

181 Id.

182 405 U.S. at 646-58.

183 The Court noted that the state's interest in the welfare of minors was legitimate; however, the Court stated: “What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case?” Id. at 652. The Court stated further: “The State's interest in caring for Stanley's children is de minimis if Stanley is shown to be a fit father.” Id. at 657-58.

184 Petitioner F., 430 A.2d at 1079.

185 See generally Stanley, 405 U.S. at 645; see also Board of Regents v. Roth, 408 U.S. 564 (1972).

186 The Supreme Court has determined that the right of a parent to raise his or her child is consitutionally protected. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

187 Vincent B., 126 Cal. App. 3d at 619, 179 Cal. Rptr. at 7; Petitioner F” 430 A.2d at 1079; A. v. X, Y, and Z, 641 P.2d at 1222. These three cases all held that the state's interests in protecting the family unit and the child were more compelling than the putative father's interest in establishing a relationship with his child. The Colorado Supreme Court disagreed. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980). See infra notes 218-19and accompanying text. See generally Note, Marital Presumptions of Paternity, 76 Nw. U.L. REV. 669 (1981), for a discussion supporting the Colorado court's decision.

188 405 U.S. at 651.

189 Although such a holding is not required by Stanley, the decision combined with the court's decision in Caban v. Mohammed, 441 U.S. 380 (1979), foreshadows a continuing movement to give greater rights to unwed fathers. It is possible that within a few years the Court will hold that the paternity presumptions are unconstitutional.

190 441 U.S. 380 (1979).

191 Id. at 394.

192 Mr. Caban cross-petitioned for adoption of his children by his new wife. Since under the statute the children's mother had the right to prevent the adoption, Mr. Cahan's petition was not considered on the merits. In fact, Mr. Caban's petition was considered only insofar as the evidence presented by him reflected upon the qualification of the children's mother and her new husband as parents. Id. at 383-84.

193 The statute in question, N.Y. DOM. REL. LAW § 111 (McKinney 1977), provided that “consent to adoption shall be required as follows: … (b) of the parents or surviving parent, whether adult or infant, of a child born in wedlock; [arid] (c) of the mother, whether adult or infant, of a child born out of wedlock … .” (emphasis added).

194 Caban, 441 U.S. at 388 (citing Craig v. Boren, 429 U.S. 190, 197 (1976)).

195 Id. at 391.

196 Id. at 392.

197 In fact, they have been held to be compelling. See supra note 187 and accompanying text.

198 R. McG., 200 Colo, at 345, 615 P.2d at 666.

199 The concurring opinion emphasized that the presumptions of paternity violated the due process clause,'not equal protection. Id. at 354-56, 615 P.2d at 673-74.

200 Id. at 352, 615 P.2d at 671.

201 See, e.g., Vincent B., 126 Cal. App. 3d at 619, 179 Cal. Rptr. at 9; A. v. X, Y, and Z, 641 P.2d at 1222; Petitioner F., 430 A.2d at 1075.

202 Vincent B., 126 Cal. App. 3d at 619, 179 Cal. Rptr. at 9.

203 Id. at 626, 179 Cal. Rptr. at 12. However, the California Supreme Court has held that in certain circumstances the presumption is unconstitutional. In re Lisa R., 13 Cal. 3d 636, 532 P.2d 123, 11 Cal. Rptr. 475 (1975). In that case both the presumed father and natural mother had died. The court held that since none of the state's interests (promoting marriage and discouraging illegitimacy) were at stake, due process would be denied if the putative father's rights to prove paternity were denied. See also, Michelle W. v. Ronald W., 139 Cal. App. 3d 24, 188 Cal. Rptr. 413 (1983), hearing granted April 28, 1983.

204 A v. X, Y, and Z, 641 P.2d at 1222.

205 Id. at 1225.

206 R. McG., 200 Colo, at 345, 615 P.2d at 666.

207 Under the UPA there are four ways to be presumed a father:

  1. (1)

    (1) The child is born during the marriage of the man and the natural mother, or within 300 days after the marriage is terminated;

  2. (2)

    (2) The child is born after the man and the natural mother have attempted to marry in apparent compliance with the law, but the marriage could be declared invalid;

  3. (3)

    (3) After the birth of the child the man and the natural mother have married and(i) the man, with his consent, is named as father on the birth cirtificate, or(ii) he is obligated to pay child support;

  4. (4)

    (4) The man receives the child into his home and openly holds out the child as his natural child.

See CAL. CIV. CODE § 7004 (West 1983).

It is possible that an unmarried surrogate may be in a relationship with a man who is a presumed father under part 4. Even if this were true the UPA allows any interested party to rebut this particular presumption. See CAL. CIV. CODE § 7006(b) (West 1983). Hence the natural father in a surrogate arrangement would be allowed to bring in evidence to rebut this particular paternity presumption.

208 See, e.g., CAL. CIV. CODE § 7006(c) (West 1983).

209 See, e.g., Griffith v. Gibson, 73 Cal. App. 3d 465, 142 Cal. Rptr. 176 (1977).

210 Although the paternity laws were developed to protect and preserve marriage and to protect children from the status of illegitimacy, it seems unfair that the natural father's rights should be dependent on the marital status of the surrogate. Still, the laws seem to have been written to protect children. When a surrogate contract is breached by the natural mother both parties want custody and control of the child. A judicial determination of paternity in the natural father would result in illegitimating the child. Moreover, it is unlikely that either natural parent would consent to a subsequent step-parent adoption. Hence, policy considerations in the surrogate context may support upholding the judicial presumptions of paternity.

211 This question may only arise in California. Many states do allow a child to rebut the presumption of paternity. See, e.g., WASH. REV. CODE ANN. § 26.26.060 (Supp. 1984); WYO. STAT. ANN. §§ 14-2-101 to -120 (1977).

212 CAL. EVID. CODE § 621 (West Supp. 1984); CAL. CIV. CODE §§ 7004-7006 (West 1983).

213 126 Cal. App. 3d 744, 179 Cal. Rptr. 108 (1981).

214 Id. at 747-48, 179 Cal. Rptr. at 110.

215 Id. at 747, 179 Cal. Rptr. at 110.

216 139 Cal. App. 3d 24, 188 Cal. Rptr. 413 (1983), hearing granted April 28, 1983.

217 139 Cal. App. 3d at 29, 188 Cal. Rptr. at 416 (citing Ruddock v. Ohls, 91 Cal. App. 3d 271, 277-78, 154 Cal. Rptr. 87, 91 (1979)).

218 Id. at 28, 188 Cal. Rptr. at 416.

219 Id. at 29, 188 Cal. Rptr. at 417.

220 See, e.g., CAL. CIV. CODE §§4600, 7010 (West 1983).

221 See, e.g., CAL. CIV. CODE § 4600 (b) (West 1983). “Custody should be awarded in the following order of preference according to the best interests of the child: (1) To both parents jointly … or to either parent.” The California statute authorizes joint custody where appropriate.

222 The tender years presumption suggests that a child of tender years should be put in the mother's custody, other things being equal.

223 Foster, & Freed, , Divorce in the Fifty States: An Overview, 14 FAM. L.Q. 229, 263-66 (1981)Google Scholar; see, e.g., OKLA. STAT. tit. 30, § 11 (1971 & Supp. 1978) (repealed 1983); see also Bruce v. Bruce, 141 Okla. 160, 168, 285 P. 30, 37 (1930); McCreery v. McCreery, 218 Va. 352, 237 S.E.2d 167 (1977). See generally Polikoff, , Why Are Mothers Losing: A Brief Analysis of Criteria Used in Child Custody Determinations, 7 WOMEN's RIGHTS L. REP. 235 (1982).Google Scholar

224 Sometimes these factors are enumerated by the legislature. See, e.g., MICH. COMP. LAWS ANN. § 722.23 (c). Other times the court is left to decide which factors are important and to weigh the competing interests.

225 In re Marriage of Bevers, 326 N.W.2d 896 (Iowa 1982); In re M.M., 650 P.2d 784 (1982).

226 Huff v. Huff, 444 A.2d 396 (Me. 1982).

227 Porter v. Porter, 274 N.W.2d 235 (N.D. 1979); Lemnach v. Cox, 639 P.2d 197 (Utah 1981); see also MICH. COMP. LAWS ANN. § 722.23 (c). See generally Polikoff, supra note 223, at 237-39.

228 Simmons v. Simmons, 223 Kan. 639, 576 P.2d 589 (1978); Gulyas v. Gulyas, 75 Mich. App. 138, 254 N.W.2d 818 (1977).

229 Simmons v. Simmons, 223 Kan. 639, 576 P.2d 589 (1978); In re Marriage of Handy, 44 Or. App. 225, 605 P.2d 738 (1980). See generally Polikoff, supra note 223, at 241.

230 Maureen F.G. v. George W.G., 445 A.2d 934 (Del. 1982); Provencal v. Provencal, 122 N.H. 793, 451 A.2d 374 (1982); Sleboda v. Sleboda, 445 A.2d 276 (R.I. 1982).

231 Maureen F.G. v. George W.G., 445 A.2d 934 (Del. 1982); Burgleigh v. Burgleigh, 650 P.2d 753 (Mont. 1982); Lounsbury v. Lounsbury, 296 S.E.2d 686 (W.Va. 1982); Garska v. McCoy, 278 S.E.2d 357 (W.Va. 1981).

232 The propriety of using these standards to resolve a custody battle in the divorce context is beyond the scope of this Article. For a critical analysis of the factors to be considered in the divorce context, see Polikoff, supra note 223.

233 If visitation rights are restricted or not granted or the losing party chooses to stop seeing the child because it is too difficult to interact with the other natural parent, the prevailing party may be able to terminate the parental rights of the other party. See infra notes 276-287 and accompanying text.

234 BUREAU OF LABOR STATISTICS, U.S. DEP't OF LABOR, 1981 WEEKLY EARNINGS OF MEN AND WOMEN COMPARED IN 100 OCCUPATIONS (1982), cited in Polikoff, supra note 223, at 239.

235 Id.

236 Guinzburg, supra note 56; see also Sherwyn & Handel, supra note 12.

237 See supra note 12 and accompanying text.

238 Polikofl, supra note 223, at 239.

239 It is likely that the infertile couple's concerns about maternal health and malnourishment would make it unlikely that they would use an extremely impoverished woman as a surrogate.

240 See supra notes 162-210 and accompanying text.

241 See infra notes 251-56 and accompanying text.

242 Polikoff, supra note 223, at 241. This is especially true in the surrogate context because the natural father's wife, in general, is a party to the agreement (even if she is not a named party).

243 Judges generally do not assume that men will be actively involved in child care. See generally Polikoff, supra note 223. This may be especially true where the man in the family has no genetic link to the child.

244 Barwin v. Reedy, 62 N.M. 183, 307 P.2d 175 (1975).

245 Commonwealth ex rel. Teitlebaum v. Teitlebaum, 160 Pa. Super. 286, 290, 50 A.2d 713, 715-16 (1947).

246 See supra notes 70-93 and accompanying text.

247 Cf. Coleman, supra note 95, at 97-103.

248 See, e.g., CAL. PENAL CODE § 273 (West 1970).

249 Many people are shocked and perturbed at the notion of women who are willing to carry a child and then give it away. See, e.g., N. KEANE & D. BREO, supra note 3, at 13, 249.

However, even if the natural mother's prepregnancy decision to enter into the surrogate contract encourages a presumption of instability of insufficient maternal instinct, then her decision to breach the contract may successfully rebut such a persumption. By breaching the surrogate agreement, the natural mother unequivocally evidences an intent not to relinquish her rights as mother to the child.

250 See Lewis, supra note 18, at 1, col. 6.

251 See generally, Polikoff, supra note 223.

252 “Psychological parenthood is the label given the interaction between those performing the parenting role and the child.” Coleman, supra note 95, at 106 n.161. See generally J., GOLDSTEIN, A., FREUD & A., SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD (1979)Google Scholar.

253 J., GOLDSTEIN, A., FREUD & A., SOLNIT, supra note 252, at 32Google Scholar.

254 See CAL. CIV. CODE § 7006(f) (West 1983).

255 Caban v. Mohammed, 441 U.S. 380, 405 n.10 (1979) (Stevens, J., dissenting). The majority does not seem to disagree with this statement. For a more detailed discussion of Caban, see supra notes 190-97 and accompanying text.

256 Lewis, supra note 123, at 7, col. 2.

257 See, e.g., CAL. CIV. CODE § 4601 (West 1983).

258 Id.

259 Stantosky v. Kramer, 455 U.S. 745, 752-54 (1982); Meyer y. Nebraska, 262 U.S. 390, 399 (1923).

260 J. GOLDSTEIN, A. FREUD & A. SOLNIT, supra note 252.

261 Id. at 38.

262 See generally J. GOLDSTEIN, A. FREUD & A. SOLNIT, supra note 252.

263 Id. at 38.

264 Coleman, supra note 95, at 106 n.161.

265 J. GOLDSTEIN, A. FREUD & A. SOLNIT, supra note 252, at 38.

266 See supra notes 255-57 and accompanying text.

267 262 U.S. 390 (1923).

268 Id. at 399.

269 Id.

270 Stanley v. Illinois, 405 U.S. 645, 651 (1971) (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

271 405 U.S. 645 (1971).

272 405 U.S. at 651 (quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring)).

273 Carey v. Population Services Int'l, 431 U.S. 678, 686 (1977).

274 See supra notes 211-19 and accompnaying text.

275 Most states have statutory provisions which grant power to the courts to terminate parental rights involuntarily upon a showing of unfitness. See, e.g., CAL. CIV. CODE § 232(a) (1)-(2).

276 Santosky v. Kramer, 455 U.S. 745 (1982).

277 Id. at 753.

278 Carey, 431 U.S. at 686.

279 Santosky, 455 U.S. at 766.

280 Id. at 769.

281 See, e.g., CAL. CIV. CODE § 232(a)(1), (2) (West Supp. 1984). Neglect and/or cruelty are found only where the child is in the custody and control of the parent and is neglected or mistreated. Hence, this requirement is not more likely to occur in the surrogate context than in general.

282 CAL. CIV. CODE § 232(a)(1) (West Supp. 1984).

283 Id.

284 See, e.g., In re Adoption of Children by D., 61 N.J. 89, 94-95, 293 A.2d 171, 173 (1972).

285 A court upon deciding the custody issue, can also determine if the non-custodial parent is required to pay child support. See, e.g., CAL. CIV. CODE § 7010 (West 1983). In fact, even if visitation is refused a child support award may be ordered. However, the parent may decide not to pay the child support. The propriety of a child support award under the myriad of possible circumstances is beyond the scope of this Article.

286 See supra notes 244-46 and accompanying text.

287 The sample agreement set out in N. KEANE & D. BREO, supra note 3, at 291, explicitly demonstrates such an intent: “The Surrogate … agrees that she will not form or attempt to form a parent-child relationship with any child she may conceive pursuant to the provisions of this contract and shall freely surrender custody to the Natural Father immediately upon birth of the child, and where necessary and permitted by law terminate all parental rights to said child pursuant to this agreement.“

288 See supra notes 23-24 and accompanying text.

289 Although prohibiting payment would diminish the number of women who were willing to be surrogates, it also deprives women of the right to receive a fee if they choose to engage in these arrangements.

290 See supra notes 27-44 and accompanying text. But see KY. REV. STAT. § 199.520(2) (Supp. 1984) supra note 42 and accompanying text.

291 A.B. No. 3139, N.J. (1983). This legislation was proposed but never enacted.

292 S.B. No. 63, Mich. (1983), was passed in the Senate on November 17, 1983. The bill states “(1) A person shall not be a party to a contract or an agreement in which a female agrees to conceive a child through artificial insemination or otherwise and to voluntarily relinquish her parental rights to the child through the execution of a release or consent.” The bill also prohibits any person from aiding others “in entering into or carrying out” these contracts. The bill has not yet been passed by the state assembly.

293 See generally Note, Black Market Adoptions, 22 CATH. LAW. 48, 49-52 (1976). See also Grove, , Independent Adoption: The Case for the Gray Market, 13 VILL. L. REV. 116 (1967).Google Scholar

294 See supra note 7.

295 See supra notes 140-42 and accompanying text.

296 Id.

297 If the contract were illegal, the couple and the natural mother might not be able to use the courts to voluntarily relinquish her parental rights. This might mean that any subsequent claim on the natural mother's part would be honored, or at least considered.

298 Kentucky v. Surrogate Parenting Assoc, Inc., 10 FAM. L. REP. 1105 (Ky. Cir. Ct. 1983) cited in Surrogate Parenting Agreements Do Not Violate Kentucky Adoption Laws, 10 FAM. L. REP. (BNA) 1105-07 (1983). The subsequent amendment of the Kentucky statute under which this case was decided, however, is indicative of the legislature's dissatisfaction with the court's validation of the surrogate contract. See supra notes 35-45 and accompanying text.

299 KY. REV. STAT. § 199.601(2) (Supp. 1984).

300 Kentucky v. Surrogate Parenting Assoc, Inc., 10 FAM. L. REP. at 1106.

301 Id.

302 Legislation providing conditions under which surrogate arrangements would be upheld was proposed in California, A.B. 3771, Cal. (1982), Illinois, S.B. 1214, 111. (1983), Michigan, H.B. 5184, Mich. (1981), and Rhode Island, A.B. 83-H6132, R.I. (1983).

All of these bills legalize the contracts and allow specific performance under appropriate circumstances. In fact, the Rhode Island bill stated that the natural mother would be given none of the “rights of motherhood.” While the other bills do not go that far, they, nonetheless, permit the courts to take the child from the natural mother if the contract is valid.

303 Since the estimated cost of the contract can reach $32,000, supra note 12, relatively few infertile couples will be able to afford this choice. Those couples who receive a child through a surrogate contract may help reduce the long wait other couples have for adoptive children, Adoption & Foster Care, supra note 8, by reducing the demand for such children.