REPRODUCTIVE SURROGACY AT THE MILLENNIUM: Proposed Model Legislation Regulating Non-traditional Gestational Surrogacy Contracts.
Weldon E. Havins, M.D., J.D.
James J. Dalessio, J.D.
In the creative process there is the father, the author of the play; the mother, the actor pregnant with the part; and the child, the role to be born.
Konstantin Sergeevich Alekseev Stanislavski, An Actor Prepares (1936).
The science of artificial reproductive technology (ART) provides ever-increasing options to the person or couple who wish to beget a child. Single, infertile, or childless men who would have never imagined the possibility of fatherhood can now opt for fatherhood. Couples incapable of bearing children but with functioning gonads can elect to beget their own genetic children. Women with non-functioning ovaries or who have undergone a hysterectomy no longer need to be resigned to never having children. Women, wishing to delay having children but anxious about losing their opportunity to reproduce, can now have their eggs harvested and frozen for their future use.
However, all these seeming miracles must surmount an obstacle. That obstacle is not so much grounded in the science of ART as it is in the legal roadblocks affecting contractual surrogacy arrangements. Surrogacy contracts come in two forms: traditional surrogacy wherein a mans (usually Husbands) sperm is used to artificially inseminate a surrogate and gestational surrogacy wherein an in vitro fertilized egg is implanted into a surrogate. The legal advantages and problems associated with each will be discussed and analyzed. Because of the historical common law, and contemporary statutory hostility to traditional surrogacy arrangements, this paper will argue in favor of bypassing traditional surrogacy in favor of gestational surrogacy arrangements. Part I of this paper will discuss the judicial approach to traditional surrogacy contracts. Part II will review the courts reasoning and holdings regarding gestational surrogacy contracts. Part III will discuss the many varied legislative approaches to the surrogacy contract problem. Part IV will review the moral and ethical arguments surrounding surrogacy. In Part V, the paper will conclude by suggesting a simple Uniform Surrogacy Act promulgating a common scheme regulating gestational surrogacy.
Part I TRADITIONAL SURROGACY CONTRACTS
Traditional surrogacy involves a contract between an infertile couple (H and W, for example) and a fertile woman (surrogate). In the traditional surrogacy contract, the surrogate agrees to be inseminated with husbands sperm and to carry the pregnancy to term. After the birth of the baby, the surrogate promises to relinquish all rights to the baby, transfer the baby to H and W, and facilitate the wifes adoption of the baby. For this, all the surrogates expenses are paid by H and W in addition to a fee for the surrogates services. These traditional surrogate contracts have not been well received in the common law courts.
The first case to reach a state supreme court occurred in 1988, in In re Baby M. The New Jersey courts were asked to determine the validity of a contract providing a new way to bring a child into a family. In addition to expenses, the surrogacy contract provided for a fee of $10,000.00 for the womans services. For this consideration, the woman promised to be inseminated with the contracting party husbands sperm, to carry the conceived child to birth, to transfer the custody of the child to the husband-father, to relinquish all legal rights to the child, and finally, to assist with any formalities of adoption by the wife. However, after the child was born, the gestational mother refused to honor the contract and demanded custody of their child. The husband and wife sued for specific enforcement of the contract.
The Trial Court held that New Jersey statutes governing adoption, termination of parental rights, and the prohibition of the payment of money in connection with adoption did not apply to surrogacy contracts. The Trial Court held the surrogacy contract valid and ordered specific performance of the contract. Granting the husband sole custody of the child, the Trial Court severed any parental rights of the surrogate, and granted adoption of the child by the wife.
On appeal, the New Jersey Supreme Court reversed and invalidated the surrogacy contract, holding that it conflicted with the same laws the Trial Court found inapplicable to the issues. The Supreme Court held that the payment of money to a surrogate mother was illegal, contrary to public policy, and potentially degrading to women. While the Court granted child custody to the father, it voided the wifes parental rights and the wifes adoption of the child. The Supreme Court then declared the surrogate to be the childs natural and legal mother. The Court added, however, that where a woman voluntarily and without payment agrees to act as a surrogate, provided she is not subject to a binding agreement to surrender her child, no New Jersey law is offended. The Court appeared to be stating that surrogacy per se did not offend New Jersey law; however, enforcement of a surrogacy contract offended New Jersey law.
A few years later, a California Fourth District Court of Appeal ruled on the validity of traditional surrogacy contracts in California. The Court began by distinguishing traditional surrogacy from an earlier California Supreme Court case addressing gestational surrogacy. The Court also distinguished a case where a sperm supplier (ambiguously referred to as a sperm donor) asserts parental rights. The Court of Appeal relied on a California Family Code provision requiring that consent for adoption of the baby be obtained by, and in the presence of, a licensed social worker. Because traditional surrogacy contracts are necessarily entered into before the child is born, traditional surrogacy contracts cannot comply with the California Family Code provision because there is no baby (and no fetus) at the time of contract. Consequently, the Court held, traditional surrogacy contracts are invalid in California.
The common law, then, evidences judicial hostility toward traditional surrogacy contracts and holds these contracts to be invalid as against public policy or otherwise unenforceable.
The consistent judicial approach of holding traditional surrogacy contracts unenforceable cracked in 1998 involving two traditional surrogacy cases. The Connecticut Supreme Court, apparently persuaded more by considerations of equity than of common law, in effect treated two cases as though a valid traditional surrogacy contract existed.
The first such instance occurred in the Connecticut Supreme Court case of Jane Doe v. John Doe. Here, the couples advertisement for a surrogate in their local newspaper resulted in a womans agreement to serve as their surrogate. The surrogate was, incidently, also married and living with her husband at the time.
John and Jane Doe, not being a couple to waste perfectly good medical insurance premiums, accompanied the surrogate to her pre-natal doctor visits where the surrogate assumed Janes identity, using Janes name, and Janes social security number. Upon admission to the hospital for delivery, the surrogate identified herself as Jane and the birth certificate indicated Janes name as the mother. The surrogate, of course, signed Janes name on all the hospital forms including the birth certificate. True to her bargain, the surrogate delivered the baby to John and Jane upon leaving the hospital, never to bother the couple again.
The apparently successful ruse collapsed when Jane filed for divorce and requested custody of the now fourteen year old child. John countered with the uncontested fact that Jane was not the genetic mother and that Jane had never adopted the child. The trial court held that the child was not an issue of the marriage and thus it had no subject matter jurisdiction to determine the custody dispute between John and Jane.
Complicating matters, the surrogate was married and living with her husband during the course of the pregnancy and delivery. Connecticut law provides that a child born to a married woman living with her husband is a presumed child of the (surrogates) marriage. The trial court concluded that this presumption had not been rebutted by the requisite clear and convincing evidence. At that point, it appeared that neither John nor Jane could be declared the childs legal parent with the presumed parents having moved out of the jurisdiction and unavailable.
After the trial courts ruling that the child was not a child of John and Janes marriage, John brought a motion in probate court to be declared the childs father and to sever any (now uncontested) parental rights of the surrogate and her former husband. This motion was granted by the probate court. The trial court, deferring to the probate courts holding declaring John to be the father, subsequently ruled that it, the trial court, did not have jurisdiction to decide custody. Thus, the trial court recognized the childs custody to be with the father by default.
On appeal, the Connecticut Supreme Court reversed and concluded that the trial court did have subject matter jurisdiction over the custody matter. Further, the Court held the statutory presumption of a childs best interest to be with the natural parent did not apply. The case was remanded back to the trial court for a determination of child custody solely based on the best interests of the child. While specifying that Connecticuts equitable parent doctrine did not apply to the facts of this case, the court strongly suggested that the wife should receive custody of the child. This, of course, is precisely the application of the equitable parent doctrine.
This case serves as an example of the twisted reasoning to which a court, bound by a policy of invalidating surrogacy contracts, will resort to give effect to the substantial purposes of the surrogacy arrangement. The Court here suggests that the best interests of the child test trump the jurisdictions common law and statutory law. However, the best interests of the child test is normally used to determine which parent will be awarded custody. Evidently, the court here would vest complete equity power in the trial courts to determine child custody on a best interests basis, whether or not the child issued from the marriage.
Later that same year, 1998, the Connecticut Supreme Court became the subject of another controversial holding. In Mary Doe v. John Roe, the Supreme Court ruled on whether the Superior Court (general jurisdiction trial court) had subject matter jurisdiction to render judgment in accordance with a stipulated agreement reached in Probate Court. That post-baby birth settlement agreement included a promise by the traditional surrogate mother to consent, for additional consideration, to the termination of her parental rights.
Here, a traditional surrogacy contract between a husband and a surrogate resulted in the birth of a healthy baby girl. Four months later, the surrogate mother filed a motion for habeas corpus, in probate court, seeking custody of the child. She also filed for declaratory judgment, requesting a determination that the surrogacy contract was void as both against public policy and as a coercive contract allegedly signed under duress and false pretenses. The father counterclaimed, asking the Court for specific performance of the surrogacy contract. During the course of the litigation, a settlement was reached in which the surrogate mother agreed to relinquish her parental rights for additional consideration. The probate court accepted the settlement agreement, terminated the surrogates parental rights, and authorized the beginning of proceedings for step-parent adoption.
Because the surrogate refused to sign the adoption papers or relinquish custody of the child eight months after the settlement agreement had been accepted by the probate court, the husband and wife filed a motion in superior court asking that court to hold the surrogate in contempt for failing to comply with the terms of the settlement agreement. The surrogate countered with a motion requesting the court to declare the agreement to be a nullity as based on an unenforceable surrogacy contract.
The Connecticut Supreme Court, arguably acting in the childs best interest, ultimately ignored the invalid traditional surrogacy contract and ruled that the superior court had jurisdiction to enforce the settlement agreement, and that the superior court had the authority to order its specific enforcement. This case suggests that if a surrogate sues to invalidate a traditional surrogacy contract, a prudent husband and wife in Connecticut would delay settlement of the case until the babys birth. After the birth of the baby, a surrogates judicially accepted settlement agreement providing for the voluntary termination of her parental rights (in consideration for more money, of course) would be enforceable as resolution of a custody dispute, and husband and wife would become the legal parents.
Thus, even though a traditional surrogacy contract would be unenforceable, the effect of enforcement may be attained through a settlement agreement which will likely include the original pecuniary consideration, plus some additional consideration. This apparently does not violate the prohibition against buying a baby adoption laws. Connecticut courts will view this type of settlement as a valid accord and satisfaction of a disputed claim. The distinguishing feature of this case was to give effect to a post-birth settlement agreement of a presumably unenforceable pre-birth traditional surrogacy agreement.
These sagacious decisions float alone in the sea of judicial hostility to traditional surrogacy contracts.
Part II GESTATIONAL SURROGACY CONTRACTS
Gestational surrogacy differs significantly from traditional surrogacy. In gestational surrogacy, an ovum is fertilized with sperm in vitro. The zygote is grown into an eight cell (or more) organism (embryo), at which point it is either placed into the uterus of a woman unrelated to the gamete providers, or frozen for such future use. The gestational surrogacy contract is entered into by a couple desiring to bring a child into the world and the uterus provider who is genetically unrelated to the embryo. The gestational surrogate provides the incubator facilitating the development (gestation) of another couples genetic child.
California’s landmark case of Johnson v. Calvert was the first to address the enforceability of gestational surrogacy contracts. Crispina Calvert underwent a hysterectomy a few weeks prior to her marriage to husband Mark. Mark and Crispina both desired to beget their own child. Although without a uterus, Crispinas functioning ovaries continued to produce healthy eggs. A sympathizing co-worker of Crispinas mentioned this sad situation to the co-workers friend who suggested that she, the co-workers friend, could serve as the couples surrogate. The gestational surrogacy contract provided that for a fee, the surrogate, Ms. Johnson, would have Mark and Crispinas in vitro produced embryo implanted into her uterus, would carry the fetus to term, and would relinquish all parental rights after the birth of the child.
Just before delivery, a dispute arose over the financial terms of the contract. Ms. Johnson threatened to refuse give up the baby after the baby was born. The Calverts sued to be declared the childs legal and natural parents. Ms. Johnson sued to have the contract declared an unenforceable surrogacy contract.
The trial court ruled in favor of the Calverts and ordered any parental rights of Ms. Johnson terminated. The Court of Appeal unanimously affirmed, holding that a woman who agrees to have a couples fertilized egg implanted in her womb is neither the natural nor legal mother of the child. The Court held the gamete suppliers are to be deemed the natural and legal parents of the child. Further, the Court held that the surrogate was not deprived of any constitutionally protected interests.
The California Supreme Court, in a matter of first impression, affirmed the holdings of the two lower courts. Holding Californias Uniform Parentage Act inapplicable because under the Act a woman could claim legal motherhood by either giving birth to the child or by proving genetic relation to the child, the Court declared its decision was governed by the intent of the efforts of the parents by which “the child would not have otherwise been born. In an epiphanic statement of brilliantly simple logic, the Court concluded that, the parties aim was to bring Mark and Crispinas child into the world, not for Mark and Crispina to donate a zygote to the surrogate. More generally, in a gestational surrogacy contract, the intent of the two genetic (gamete) suppliers is to bring a child into the world, not to donate their zygote to the surrogate. This solitary finding clearly distinguishes traditional surrogacy from gestational surrogacy.
The Court recognized that a woman who voluntarily agrees to gestate and deliver for a married couple a child who is their genetic offspring is situated differently from the wife who provides the ovum for fertilization, intending to mother the resulting child. Additionally, the Court stated that all the parties realized that a pregnant woman has a constitutionally protected right to abort any fetus which she is carrying, consistent with current law. Any promise abrogating that right would be unenforceable. Additionally, the Court opined that gestational surrogacy contracts do not exploit women of lower economic status any more than any other poorly paying and undesirable employment. Therefore, gestational surrogacy contracts are not unconscionable or coercive as a matter of law.
The dissenting justice in Johnson concluded that the satisfaction of the strong desire to have ones own genetically related child was not worth the social price of the surrogacy arrangement. He would have the case remanded to the trial court where the surrogacy contractual dispute would be settled on the best interests of the child basis. He cautioned that the magnitude and severity of public policy considerations demand immediate legislative attention and action.
Those criticizing gestational surrogacy as economically exploitative should note that Johnson acknowledged that women of lower economic class would more likely serve as contractual surrogates than those of higher economic classes. However, the California Supreme Court found that there was no factual basis to support the exploitation contention. The Court added that no proof existed that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower paid or otherwise undesirable employment.
In 1994, an Ohio court found that its state statutes did not anticipate a surrogacy issue. The Ohio court found the states birth registration statutes inapplicable in a gestational surrogacy arrangement. In Belsito v. Clark the wife had undergone a hysterectomy just before marriage, just as was the case in Johnson. Knowing of the couples yearning to have a child, the wifes sister agreed to gestate the couples in vitro conceived embryo, without compensation. As the pregnancy neared term, the couple learned of an Ohio law providing that if the birth mother is not married to the father, the child is officially deemed illegitimate. To avoid stigmatizing their child as illegitimate, the genetic mother (wife) and genetic father (husband) filed a motion requesting a declaratory judgment finding them to be the legal and natural parents of the soon to arrive baby.
The Court found Ohios birth registration statutes inapplicable in a gestational surrogacy setting. Consistent with Johnson, the Belsito Court noted the gestational mother was genetically unrelated to the embryo, and that the genetic providers (husband and wife) intent governed whether the child would be brought into being. Because the husband and wife provided the childs genes and because the husband and wife intended to bring the child into being, the Court held the husband and wife to be the natural and legal parents. Therefore, the birth certificate was ordered to so indicate.
Thus, the Supreme Courts of California and Ohio reached the same compelling holding regarding gestational surrogacy contracts: the providers of the genetic gametes are the natural and legal parents of the child, and the intent of those providers to bring the child into the world controls.
Perhaps the ultimate gestational surrogacy contract case, involving five parties, occurred in Californias Buzzanca v. Buzzanca. In Buzzanca, a sterile husband and an infertile wife, desiring a child but wanting to have some choice over the childs genetic constituency, obtained a donated egg and selected donated sperm for in vitro fertilization. The resulting embryo was implanted into the uterus of another woman serving as a contractual gestational surrogate. Thus, neither husband nor wife were genetically related to the embryo derived from an egg donor and sperm donor. The gamete donors were neither related to the contracting couple nor to the gestational surrogate.
Just before the birth of the child, Mr. Buzzanca filed for divorce. Claiming she and her husband were the childs parents, Mrs. Buzzanca demanded paternal child support payments. Mr. Buzzanca disclaimed any paternal responsibility on grounds that he was not genetically related to the child and that the gestational surrogacy contract was invalid since it was signed after the pregnancy had commenced. The surrogate made it clear that her responsibilities were limited to those of a contractual gestational surrogate. The gamete providers were donors and had relinquished any rights at the time of their gamete donations.
The trial court examined Californias Uniform Parentage Act and determined that parenthood could be established by giving birth or by genetic relation proven by blood tests. Because the Buzzancas were not genetically related to the child, the gametes were donated without intent to reserve parental rights, and the gestational mother was only obligated to perform under the terms of the contract, the trial court found that the baby was born parentless!
On appeal, the Fourth District Court of Appeals held that, under California common law, fatherhood could be established if the husband consented to the artificial insemination of his wife. The court of appeal held that rule pertinent here. Since Mr. Buzzanca consented to the in vitro fertilization which was intended to result in a child, he was the lawful father. Uncontested, Ms. Buzzanca was held to be the childs mother. The childs procreation was the product of a medical procedure initiated by intended parents. The court reasoned that, as the legal father, Mr. Buzzanca was entitled to all the rights and responsibilities of fatherhood, including child support.
This 1998 case of Buzzanca follows the reasoning and holding the Californias Supreme Court in Johnson, and concurs with the Ohio Supreme Court in Belsito. The common judicial approach of enforcing gestational surrogacy contracts and refusing to enforce traditional surrogacy contracts is not found in our legislatures.
Part III STATUTORY REGULATION OF SURROGACY
Some states have adopted the Uniform Parentage Act (UPA), which appears to apply to surrogacy contracts. Under the UPA, parentage can be established by either proving a genetic relationship to the child or by the woman bearing and delivering the child. Applying the Act to a traditional surrogacy situation, the surrogate and the semen provider (usually the contracting husband) are the childs mother and father. The wife, since she is neither genetically related nor the birth mother, has no legal parentage status. By contrast, in gestational surrogacy, both husband and wife are genetically related to the child, thereby providing the wife with a claim under the UPA. Presently, four states have statutorily recognized the validity and enforceability of surrogacy contracts: Florida, Nevada, New Hampshire, and Virginia. All four of these states prohibit the compensation of a surrogate although all permit payments for direct and indirect medical expenses. Florida, New Hampshire, and Virginia are the only states that specifically recognize gestational surrogacy as distinct from traditional surrogacy although New Hampshire explicitly enforces non-compensated traditional surrogacy contracts also. Except for these three states, neither Nevada, nor any other state statutorily distinguishes gestational surrogacy from traditional surrogacy, notwithstanding that fourteen years have passed since the birth of the first gestational surrogate child. For their surrogacy contracts to be enforceable, New Hampshire and Virginia require advance judicial approval of the agreement.
Arkansas law, last amended in 1989 appears to address only surrogates impregnated by artificial insemination. The law provides that the child born by means of artificial insemination is presumed to be that of the intended mother rather than the surrogate mother.
The following six jurisdictions provide for criminal penalties for various acts involving surrogacy contracts: District of Columbia, Kentucky, Michigan, New York, Utah, and Washington. Kentucky, Nebraska, and Washington define surrogacy contracts as those in which a woman is compensated for gestating a baby conceived by artificial means. One could infer from these statutes that non-compensated arrangements are lawful and presumably enforceable assuming compliance with contract law.
An example of the courts and the legislature viewing the enforceability of surrogacy arrangement differently occurred in Kentucky. The Kentucky Supreme Court ruled, in Surrogate Parenting Associates v. Commonwealth, that compensated surrogate parenting contracts were enforceable. The Kentucky legislature responded by passing a bill providing for the unenforceability of compensated surrogacy arrangements. This implies that Kentucky follows Florida, Nevada, New Hampshire, and Virginia whose statutes provide that uncompensated surrogacy arrangements are enforceable.
So, it is apparent that gestational surrogacy contracts can be anywhere from valid and enforceable to the subject of a felony violation with a prison term (along with associated revocation of professional licenses). Some states, such as Florida and Virginia specifically address gestational surrogacy contracts. Others, like New Hampshire, only imply a recognition of gestational surrogacy contracts. However, most states legislatively addressing the issue do not distinguish between traditional and gestational surrogacy. All this inconsistency occurs in the face of a brilliant 1993 California Supreme Court decision which could not have more clearly delineated the distinction between traditional and gestational surrogacy contracts.
PART IV MORAL AND ETHICAL CONSIDERATIONS
Opponents of surrogacy have lobbed criticism at the mere concept of surrogacy. Some opponents contend that surrogacy exploits women. The court in Baby M stated that compensated surrogacy agreements financially exploit vulnerable women much as does baby selling. The court declared that a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment renders the contract inherently involuntary. Further, the court implied the rather large payment in a surrogacy contract gives rise to an unacceptable class distinction whereby rich barren women benefit at the expense of poor fertile women.
One commentator maintains there is little compelling evidence for the claim that surrogate arrangements are inherently exploitative. There are many other motives for women to become surrogates: many wish to help an infertile couple beget a child; others may wish to experience pregnancy and childbirth without having to raise a child. Thus, the financial exploitation argument appears weak, at best.
Another type of exploitation argument contends that surrogacy reduces a woman to the status of a commercial good. This is the so-called commodification argument. Adherents to this argument fear that women will be hired as surrogates because of their beauty, intelligence, or race. Professor Richard Epstein rejects this argument as an effort by some to impose their own conception of the right and proper thing to do with bodies, sperm and eggs, upon those who may feel differently. Epstein rightly feels that no ones views on commodification should be imposed on those who disagree.
Some feminists argue that surrogacy contracts prostitute or enslave women in exchange for money. They argue that like prostitutes, surrogates are forced into that role as an economic necessity. They conclude that because prostitution is morally illegal, so should be surrogacy on the same basis. Epstein counters that surrogacy contracts cannot be blocked simply because some disapprove of the motives and actions of others. Further, as the Supreme Court in Casey v. Planned Parenthood stated, morality alone cannot be the basis for the law.
Professor Hill explains that for a contract to be exploitative, an offer must create or take advantage of a known psychological vulnerability rendering the victim incapable making reasonable decisions. Consequently, commercial contracts such as surrogacy contracts are not generally exploitative.
Finally, traditional surrogacy arrangements are criticized as akin to baby-selling. Because state statutes generally prohibit, in the context of adoption, exchanging money for a baby, surrogacy contracts should be prohibited because the result is the same, i.e., the procurement of a baby for money. Commercial surrogacy places a baby in a home without considering whether the prospective parents would be suitable. However, this argument is undermined when one considers that innumerable babies are born into households where the parents may be considered unsuitable.
Perhaps the more common feminist approach to surrogacy is exemplified by the famous anthropologist Margaret Sanger who proclaimed that, No woman can call herself free who does not own and control her own body. Impliedly, Sanger and others of her view maintain that any restriction over a womans right to do with her body as she wishes, under whatever moral or ethical theory, violated that womans ownership and control her own body. Supreme Court decisions in Roe v. Wade and Planned Parenthood v. Casey appear consistent with Sangers point of view.
With the advancing march of artificial reproductive technological capabilities and the proximity of clinical experimentation in human cloning, there is a compelling need to develop a uniform approach to surrogacy among our states. If we do not, well perpetuate the absurdity of: in state A, being guilty of committing a felony for assisting a couple contracting to beget their baby; while in an adjacent state B, assisting the couple contracting to beget their baby under a statutorily regulated positive public policy. Traditional surrogacy contracting has been pummeled in both the courts and the legislatures. However, the advent of in vitro fertilization has, fortunately, rendered traditional surrogacy obsolete and unnecessary. The future lies in gestational surrogacy which has been received favorably in our courts and reasonably favorably, if confusedly, by our legislatures. It is time for our legislators to awaken to the reality of the promises afforded by gestational surrogacy.
Part V A PROPOSED UNIFORM GESTATIONAL SURROGACY ACT
Section I. Gestational surrogacy occurs when an embryo, not genetically related to the woman in whom implantation of the embryo will occur, is implanted into the uterus of the woman for the purpose of developing the embryo into a fetus and giving birth to a live baby.
Section II. Gestational surrogacy contracts shall be governed by the contract law of the jurisdiction in which the contract was signed. A gestational surrogate shall be entitled to reasonable compensation for her services.
Section III. A gestational surrogacy contract shall be valid and enforceable when, prior to the signing of the said contract and commencement of the in vitro fertilization, a court of general jurisdiction:
- conducts a hearing at which the interested parties must appear;
- interviews the parties to the contract and determines that there is an absence of coercion, duress, and exploitation;
- makes a finding that the parties understand the terms of contract, including the constitutional right of the gestating female to abort the fetus as provided by law.
Section IV. The court shall appoint an attorney to represent any party claiming insufficient funds.
Section V. The court may order, sua sponte, medical examinations, psychiatric consultations, or other expert evaluations if the court deems these appropriate to a sagacious decision regarding the contract.
Section VI. If satisfied that the gestational surrogacy contract is in the best interests of the parties, the court shall approve the gestational surrogacy contract.
Once approved by the court, the gestational surrogacy contract shall not be modifiable except by the written consent of every party to the contract and approval by the court.
Contracts under this Act sustain the sagacity of pre-approved gestational surrogacy contracts, follows the holdings of the Johnson Court, and protects gamete providers from the vicissitudes of a surrogate. Section I specifies that only contracts involving the implantation of non-genetically related gametic sources have the potential of acquiring enforceability. This requirement distinguishes traditional surrogacy wherein, as the result of artificial insemination, the surrogate is genetically related to the fetus. It also distinguishes situations where a genetically related gamete is fertilized in vitro and implanted into the surrogate. This requirement of no genetic relationship to the implanted embryo is necessary for the Act to be consistent with the important reasoning in Johnson that the gametic providers intend to bring their baby into the world, not to provide a gift of a zygote to the surrogate.
Admittedly, this requirement restricts a woman from donating her own egg (thereby relinquishing all ownership rights over her ovum) and serving as the surrogate for the zygote product of her in vitro fertilized egg. However, permitting this exception would blur the distinction between the genetically related traditional surrogate and the non-genetically related gestational surrogate that has characterized courts distinguishing the invalidity and enforceability of the contracts.
Section IIs provision, applying the jurisdictions contract law, warrants a partys protections against adhesion, fraud, etc., which have developed over time and are accepted public policy. Providing for a gestational surrogates reasonable compensation conflicts with the statutes of all four states which provide for the enforceability of gestational surrogacy contracts. However, it seems unreasonable to expect the substantial services of surrogacy without providing for compensation. Compensation should enhance the pool of potential excellent quality surrogates. Admittedly, compensation opens the specter of commodification and economic exploitation discussed earlier. I concur with Epsteins arguments that the critics are but thinly veiled moralists demanding that others behavior conform to their dictates of what is right and wrong. Epstein points out that moral reasoning alone has been established by the U.S. Supreme Court to be inappropriate and insufficient to sustain a law.
The Section IIIs requirement for a hearing adversely impacts limited and increasingly scarce judicial resources. However, the importance of the subject matter of the contract and the advantage of an experienced neutral fact finder viewing the demeanor of the parties may well contribute to avoiding prolonged and painful future litigation. The hearing need not be lengthy. If the judge deems the parties and the contract reasonable, he may approve it promptly.
Section IVs provision for appointing an attorney for the surrogate will enhance both fairness and the concept equal representation to avoid economic exploitation. Section V provides for a courts sua sponte discretion to obtain expert professional consultation to help the judge more thoroughly evaluate a party when the judge suspects a partys inappropriate motivation or unsuitability as a surrogate.
Finally, Section VI provides that a judge has an opportunity to assure that the parties understand and consent to the responsibilities imposed by the contract and evaluate the contract for over-reaching or other unlawful elements. Perhaps most importantly, this section vests in an independent and disinterested judicial officer the authority to disapprove a clearly unwise match of gametic providers and surrogate.
This Act distinguishes the discredited and problematic traditional surrogacy arrangement from valid, viable, and enforceable gestational surrogacy. The right of the infertile couple to beget their genetically related child compels legislative action to ensure the availability of gestational surrogacy.
 See L. Bonetta, Postponing pregnancy by freezing oocytes, 4(2) Nat. Med. 138 (Feb. 1998). See also E. Young, et. al., Triplet pregnancy after intracytoplasmic sperm injection of cryopreserved ooctyes: case report, 70(2) Fertil. Steril. 360 (1998); K. Oktay, et. al., Cryopreservation of immature human oocytes and ovarian tissue: an emerging technology, 69 Fertil. Steril. 1 (1998).
 Surrogacy origin dates back as far as Genesis. Sarah, Abrahams infertile wife, directs him to go into my maid, Hagar, so that Sarah may found a family through her. Genesis 16:2. Thereby, Hagar became the first documented surrogate. What did Hagar have to say about this? We dont know.
The second documented surrogate was Rachels slave Bilhah. Infertile Rachel encouraged her husband Jacob to lie with [Bilhah], so that she may bear sons to be laid upon my knees, and through her I too may build up a family. Genesis 30:3-5 (King James).
From these early surrogacy arrangements, exploitation of surrogates has been suspect. However, is there exploitation of the surrogate as a woman or exploitation of the surrogate as a slave that is the dominant concern? This paper will argue it is the exploitation of the woman as a slave because the slave has no choice of whether to assent to the surrogacy.
 The trial court found, among others, the following facts: The surrogate party fled the state with the baby to avoid service of process, lived in twenty different motels and homes in the next three months to avoid prosecution, threatened to kill herself, kill the child, and falsely accuse the husband of sexually molesting the surrogates other child.
 Id. See infra, the states of Florida, Nevada, New Hampshire, and Virginia have adopted statutes wherein unpaid surrogacy contracts are explicitly enforceable through specific performance, although New Hampshire requires advance judicial approval of the agreement and even then permits the surrogate to opt out of the agreement within seventy two hours of the birth of the child. Virginia requires the intended mother to be infertile, and advance judicial approval of the agreement (but not opt out provision) for the contract to be enforceable.
 Gestational surrogacy contracts were addressed in Johnson v. Calvert, 5 Cal.4th 84, 851 P.2d 776, 19 Cal. Rptr.2d 494 (1993). Gestational surrogacy involves the in vitro fertilization of sperm with an egg which is then grown into an embryo. This embryo is then implanted in another womans uterus. The woman gestates the child for the intended mother and father, and under the terms of the gestational contract, is (generally) paid for her services. The gestational mother, therefore, is not genetically related to the child.
 Jhordan C. v. Mary. K., 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 (1986). Here, as in the traditional surrogacy contract, the baby is genetically related to the sperm supplier and the gestational mother. The issue was whether the sperm donor was a intentional true donor. Donation implies relinquishment of any rights to the thing donated. True donation, for example, occurs when the source of sperm sells a sample to a sperm bank.
 25 Cal. App. 4th at 1222-23, 30 Cal. Rptr. 2d at 894-95. The traditional surrogate contract child is the product of the intended father and the unintended mother, and genetically related to both.
 See generally, Doe v. Doe, 710 A.2d 1297 (Conn. 1998). Jane, having borne three previous children in another country followed by a tubal ligation, met John. Together they decided to have a child. A tubal reconstruction re-anastomosis procedure was unsuccessful and Janes pregnancy via usual means was not possible.
 Morrow v. Morrow, 345 A.2d 561 (1991) (holding that children who otherwise might have been deemed illegitimate are presumed at common law to be children of the marriage if they were born to the wife during the course of the marriage).
 Doe, 710 A.2d at 1324. While the court stated that Connecticuts equitable parent doctrine would not apply to these facts, the Court remanded suggesting that joint custody would be in the best interests of the child. Id. at 1324.
 Id. at 1318, fn. 16. The Court stated that the equitable parent doctrine has considerable emotional appeal, because it permits a court, in a particularly compelling case, to conclude that, despite the lack of biological or adoptive ties to the child, the deserving adult nonetheless may be determined to be the childs parent. This appeal may be enhanced in a given case because the best interests of the child may be determined irrespective of the otherwise invalid claim of parentage. That doctrine, the Court continued, would lack the procedural and substantive safeguards provided to the natural parents and the child by the adoption statutes. Also, the Court noted, the equitable parent doctrine, which requires an ad hoc, case‑by‑case determination of parentage after the facts of the case have been determined, would eliminate the significant degree of certainty regarding who is and who is not a childs parent.
 Baby M and Moschetta hold surrogacy contracts invalid or unenforceable and imply that genetic relationships control with the non-gestational wife having no parental rights notwithstanding the intention of the parties at the time of contract. This case suggests that intention coupled with time can prevail over established common law.
 Because gestational surrogacy is clearly distinguished, in law and in biology, from traditional surrogacy, authors and legislatures would do well to avoid the generic term surrogacy. With the advances in in vitro fertilization and the temporal proximity of human cloning, gestational surrogacy will become increasingly common. Gestational surrogacy, and its associated contractual arrangements, will cease to be at issue only by the advent of an effective artificial uterus thereby circumventing the need for a human uterus. When that day arrives, needless to say, there will be a plethora of comments on the appropriateness of utilizing such a device.
 Some authors declare that surrogacy contracts are an exploitation of the poor. In the instant case, the fee of $10,000 is calculated to be $1.45 per hour for 24 hours per day for 40 weeks. The implication is that this low payment is exploitation.
This argument is spurious. Since when is a voluntary, non-coercive, mutually negotiated contract to be adjudged by an outside party as exploitation? Neither party is required to contract. Is pregnancy is full time occupation? Absent complications, most pregnant women work at their usual jobs during their pregnancy. Is it not a persons autonomous right to use their body as they desire (assuming it does not harm others)? Is a college athletic scholarship an exploitation of a person who does not happen to be wealthy? Where is the evidence that only poor women agree to become surrogates? It appears that this contention of exploitation of poor women is non-meritorious speculation, at best.
 Uniform Parentage Act, Cal. Fam. Code 7600‑7650 (West Supp. 1998). The California Uniform Parentage Act was enacted as a result of the United States Senate proposing a bill entitled the Uniform Parentage Act as part of legislation introduced in 1975. See Johnson, 5 Cal. 4th at 85, 851 P.2d at 778, 19 Cal. Rptr. 2d at 496. The proposed legislation in the U.S. Senate came about as a result of United State Supreme Court decisions which had eliminated the legal distinction between legitimate and illegitimate children. Levy v. Louisiana, 391 U.S. 68 (1968) and Glona v. American Guarantee Co., 391 U.S. 73 (1968)). The main portions of this Senate Bill became part of the California Family Code, which was entitled the Uniform Parentage Act.
 Johnson, 5 Cal. 4th at 90, 851 P.2d at 883, 19 Cal. Rptr. at 501. This reasoning seems a little weak because the intent of the husband and wife in a traditional surrogacy contract also is to bring a child into being. But in a traditional surrogacy arrangement, the mother is not the contracting wife of the biological father, it is the contractual surrogate.
Since intent exists in both situations, it seems much better to rely on the genetic origins of the child as controlling. Genetic origin is objective, discoverable, and constant. Reliance on genetic origin is consistent with the result in traditional surrogacy contracts and with the outcome here.
The dissent in Johnson v. Calvert stated that the best interests of the child should control rather than considerations of intent.
 Id. California has not yet statutorily addressed gestational surrogacy contracts. However, on Sept. 26, 1992, Governor Pete Wilson vetoed Senate Bill No. 937 which would have provided that surrogacy contracts (the bill did not distinguish between traditional and gestational) were consistent with public policy. Sen. Daily File (1991-92 Reg. Sess., p. 68).
 The court here, as in Johnson, specified that the genetic providers intent is of such critical significance that without it the baby would not have been born. This intent is distinguished from the intent of the husband and wife in a traditional surrogacy arrangement where the wifes position sinks to the level of an intended third party beneficiary of the contract between the sperm provider husband and the ovum providing surrogate. In a gestational surrogacy contract, the gamete providing husband and wifes intent governs whether the embryo will be created.
 See generally, Teresa Abell, Note, Gestational Surrogacy: Intent‑Based Parenthood in Johnson v. Calvert, 45 Mercer L. Rev. 1429, 1430 (1994) (explaining that the child’s existence is due to the intentions upon which the Calvert’s acted on). The court used a modified “but‑for” analysis‑‑”[b]ut‑for” the Calvert’s acts in bringing about the pregnancy, “the child would not have existed.” Id.
742.15 Gestational surrogacy contract
(1) Prior to engaging in gestational surrogacy, a bonding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate. A contract for gestational surrogacy shall not be binding and enforceable unless the gestational surrogate is 18 years of age or older and the commissioning couple are legally married and are both 18 years of age or older.
Additionally, the commissioning mother must not be able to gestate a pregnancy to term. The commissioning couple may agree to pay only reasonable living, legal, medical, psychological … expenses directly related to prenatal, intrapartal, and postpartal periods.
126.045 Surrogacy Agreements: Contract requirements; treatment of intended parents as natural parents; unlawful acts.
- Two persons whose marriage is valid under chapter 122 of NRS may enter into a contract with a surrogate for assisted conception. Any such contract must contain provisions which specify the respective rights of each party, including:
(a) Parentage of the child;
(b) Custody of the child in the event of a change of circumstances; and
(c) The respective responsibilities and liabilities of the contracting parties.
- A person identified as an intended parent in a contract described in subsection 1 must be treated in law as a natural parent under all circumstances.
- It is unlawful to pay or offer to pay money or anything of value to the surrogate except for the medical and necessary living expenses related to the birth of the child as specified in the contract.
- As used in this section, unless the context otherwise requires:
(a) Assisted conception means a pregnancy resulting when an egg and sperm from the intended parents are placed in a surrogate through the intervention of medical technology.(emphasis added)
(b) Intended parents means a man and woman, married to each other, who enter into an agreement providing that they will be the parents of a child born to a surrogate through assisted conception.
(c) Surrogate means an adult woman who enters into an agreement to bear a child conceived through assisted conception for the intended parents.
Surrogacy or surrogacy arrangement means any arrangement by which a woman agrees to be impregnated using either the intended fathers sperm, the intended mothers egg, or their preembryo with the intent that the intended parents are to become the parents of the resulting child after the childs birth.
168-B:16 Regulatory Procedures
- A surrogate arrangement is lawful only if it conforms to the requirements of this subdivision, and if, before the procedure to impregnate the surrogate:
(b) The surrogate arrangement has been judicially preauthorized pursuant to RSA 168-B:22; and
(c) [informed consent obtained];
- No person or entity shall promote or in any other way solicit or induce for a fee, commission or other valuable consideration, or with the intent or expectation of receiving the same, any party or parties to enter into a surrogacy arrangement.
168-B:22 Judicial Preauthorization.
[Hearing within 90 days of filing of petition for preauthorization].
Gestational mother means the woman who gives birth to a child, regardless of her genetic relationship to the child.
Surrogacy contract means an agreement between intended parents, a surrogate, and her husband, if any, in which the surrogate agrees to be impregnated through the use of assisted conception, to carry any resulting fetus, and to relinquish to the intended parent the custody of and parental rights to any resulting child.
20-159 Surrogacy contracts permissible.
- [written agreement whereby the surrogate relinquishes all her rights to the child].
- Surrogacy contracts [require prior approval by the court]. See 20-160.
20-161 Termination of court-approved surrogacy contract.
- Within 180 days after the last performance of any assisted conception, a surrogate [may request and require the court to revoke the agreement].
 Outrageously, Nevada permits prostitution in licensed brothels (needless to say, for large profits), but will not enforce a surrogacy contract if the surrogate is compensated. See, Nev. Rev. Stat. Ann. 201.354 (Michie 1997) (providing for legal prostitution and solicitation occurring in a licensed house of prostitution); Nev. Rev. Stat. Ann. 126.045(3)(Michie 1997) (providing surrogacy contracts, wherein the surrogate receives compensation for her services, are unenforceable).
9-10-201 Child born to married or unmarried woman – Presumptions – Surrogate mothers.
[child born to surrogate mother conceived by means of artificial insemination is presumed child of the biological father and the woman intended to be the mother….]
31-20-1-1 Legislative declarations (Public policy declaration)
Sec. 1. The general assembly declares that it is against public policy to enforce any term of a surrogate agreement that requires a surrogate to do any of the following:
(1) Provide a gamete to conceive a child.
(2) Become pregnant.
(3) Consent to undergo or undergo an abortion.
(4) Undergo medical or psychological treatment or examination.
(5) Use a substance or engage in activity only in accordance with the demands of another person.
(6) Waive parental rights or duties to a child.
(7) Terminate care, custody, or control of a child.
(8) Consent to a stepparent adoption under IC 31-19 (or IC 31-3-1 before its repeal).
31-20-1-2 Surrogate agreements void
Sec. 2. A surrogate agreement described in section 1 of this chapter that is formed after March 14, 1988, is void.
- Contract for surrogate motherhood; nullity
- A contract for surrogate motherhood as defined herein shall be absolutely null and shall be void and unenforceable as contrary to public policy.
- Contract for surrogate motherhood means any agreement whereby a person not married to the contributor of the sperm agrees for valuable consideration to be inseminated, to carry any resulting fetus to birth, and then to relinquish to the contributor of the sperm the custody and all rights and obligations to the child.
722.855. Contracts; void and unenforceable
Sec. 5. A surrogate parentage contract is void and unenforceable as contrary to public policy.
25-21,200. Contract; void and unenforceable; definition.
(1) A surrogate parenthood contract entered into shall be void and unenforceable. The biological father of a child born pursuant to such a contract shall have all the rights and obligations imposed by law with respect to such child.
(2) For purposes of this section, unless the context otherwise requires, a surrogate parenthood contract shall mean a contract by which a woman is to be compensated for bearing a child of a man who is not her husband.
- Public policy
Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.
14-18-05 Surrogate agreements.
Any agreement in which a woman agrees to become a surrogate or to relinquish that womans rights and duties as a parent of a child conceived through assisted conception is void. The surrogate, however, is the mother of a resulting child and the surrogates husband, if a party to the agreement, is the father of the child.
36-1-102-(46)(C) Surrogate birth.
Nothing herein shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or in the general assembly.
16-402. Prohibitions and Penalties.
(a) Surrogate parenting contracts are prohibited and rendered unenforceable in the District.
(b) Any person or entity who or which is involved in, or induces, arranges, or otherwise assists in the formation of a surrogate parenting contract for a fee, compensation, or other remuneration, or otherwise violates this section, shall be subject to a civil penalty not to exceed $10,000 or imprisonment for not more than 1 year, or both. (emphasis added)
(3) any person who willfully violates [KRS 199.590] shall be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days, or both.
722.857 Surrogate parentage contract prohibited; surrogate parentage contract as felony; penalty.
Sec. 7.(1) A person shall not enter into, induce, arrange, procure, or otherwise assist in the formation of a surrogate parentage contract under which an unemancipated minor female or a female diagnosed as being mentally retarded or as having a mental illness or developmental disability is the surrogate mother or surrogate carrier.
(2) A person other than an unemancipated minor female or a female diagnosed as being mentally retarded or as having a mental illness or developmental disability who enters into, induces, arranges, procures, or otherwise assists in the formation of a contract described in subsection (1) is guilty of a felony punishable by a fine or not more than $50,000 or imprisonment for not more than 5 years, or both.
 N.Y. Dom. Rel. Law 123 (McKinney Supp. 1997) (imposing a civil penalty upon those entering into a surrogacy agreement and a felony for third parties who recruit or procure women to become surrogates).
123 Prohibitions and penalties.
- No person shall request, accept, pay or give any fee … in connection with a surrogate parenting contract.
2(a). Any [party to the contract] in violation of 1 shall be subject to a civil penalty not to exceed five hundred dollars.
(b) Any other person or entity assist[ing] with formation of a surrogate parenting contract for compensation … shall be subject to a civil penalty not to exceed ten thousand dollars and shall be guilty of a felony.
76-7-204 Prohibition of surrogate parenthood agreements Status of child – Basis of custody.
(1) (a) No person, agency, institution, or intermediary may be a party to a contract for profit or gain in which a woman agrees to undergo artificial insemination or other procedures and subsequently terminate her parental rights to a child born as a result.
(b) No person, agency, institution, or intermediary may facilitate a contract prohibited by Subsection (1). This section does not apply to medical care provided after conception.
(c) Contracts or agreements entered into in violation of this section are null and void, and unenforceable as contrary to public policy.
(d) A violation of this subsection is a class B misdemeanor. (emphasis added)
(2) An agreement which is entered into, without consideration given, in which a woman agrees to undergo artificial insemination or other procedures and subsequently terminate her parental rights to a child born as a result, is unenforceable.
(3) (a) In any case arising under Subsection (1) or (2), the surrogate mother is the mother of the child for all legal purposes, and her husband, if she is married, is the father of the child for all legal purposes.
(b) In any custody issue that may arise under Subsection (1) or (2), the court is not bound by any of the terms of the contract or agreement but shall make its custody decision based solely on the best interest of the child.
(4) Nothing in this section prohibits adoptions and adoption services that are in accordance with the laws of this state.
(5) This section applies to contracts or agreements that are entered into after April 24, 1989.
26.26.250 Surrogate parenting–Provisions violated–Penalty.
Any person, organization, or agency who intentionally violates any provision [of this section] shall be guilty of a gross misdemeanor.
199.590 Prohibited acts and practices in adoption of children; expenses paid by prospective adoptive parents to be submitted to court.
(4) A person, agency, institution, or intermediary shall not be a party to a contract or agreement which would compensate a woman for her artificial insemination and subsequent termination of parental rights to a child born as a result of that artificial insemination. A person, agency, institution, or intermediary shall not receive compensation for the facilitation of contracts or agreements as proscribed by this subsection. Contracts or agreements entered into in violation of this subsection shall be void.
25-21,200. Contract; void and unenforceable; definition.
(1) A surrogate parenthood contract entered into shall be void and unenforceable. The biological father of a child born pursuant to such a contract shall have all the rights and obligations imposed by law with respect to such child.
(2) For purposes of this section, unless the context otherwise requires, a surrogate parenthood contract shall mean a contract by which a woman is to be compensated for bearing a child of a man who is not her husband.
26.26.230. Surrogate parenting – Compensation prohibited
No person, organization, or agency shall enter into, induce, arrange, procure, or otherwise assist in the formation of a surrogate parentage contract, written or unwritten, for compensation.
26.26.240. Surrogate parenting – Contract for compensation void
A surrogate parentage contract entered into for compensation, whether executed in the state of Washington or in another jurisdiction, shall be void and unenforceable in the state of Washington as contrary to public policy.
 See generally Margaret J. Radin, Contested Commodities, Cambridge, Mass.: Harvard University Press (1996) (a thorough presentation of the theory that surrogacy renders the surrogate and the surrogates product, the child, to the status of a commercial good.
 Casey v. Planned Parenthood, 505 U.S. 833, 850 (1992) (stating that men and women of good conscience can disagree about the basic principles of morality, but that cannot control … our obligation to define liberty and not mandate our own moral code).