Surrogate Motherhood

Legal and Legislative Issues
  • Bernard M. Dickens


The biblical account of the Creation, in the first book of the Old Testament, includes details of arrangements by which women deliberately conceived children in order for them to be surrendered to the families of their natural fathers.1 Although surrogate transactions by normal conception may thus be found at the genesis of Judeo-Christian culture, the emergence of the surrogate phenomenon in recent years has found the law unprepared. New reproductive technologies have added significantly to the potential for surrogacy and may make it more necessary for the law specifically to address an agreement, in written form and perhaps for payment, by which a woman bears a child for the purpose of surrendering it to be reared outside her own nuclear family.


Artificial Insemination Social Parent Sperm Donor Birth Registration Surrogate Motherhood 
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    See Genesis 16:3, in which Abraham had a son through the handmaiden of his barren wife Sarah, and Genesis 30:1–6, in which the maid of Rachel bore her husband Jacob’s child.Google Scholar
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    The President of the Surrogate Parent Foundation, a California nonprofit organization formed to provide information to the public, has testified that, from early 1981 to early 1982, the foundation received 20,000 requests for information; see Winborne, W. H. (ed.), Handling Pregnancy and Birth Cases ,Shepard’s/McGraw-Hill, Family Law Series, Colorado Springs (1983), 252.Google Scholar
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    In Kentucky v. Surrogate Parenting Associates, Inc. (Franklin Circuit Ct. No. 81-CI-0121, October 26, 1983), revocation of the defendant’s corporate charter, on allegation of violation of law on adoption and termination of parental rights, was denied. An appeal has been filed: see New York Times (Feb. 27, 1984).Google Scholar
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    They may similarly not be considered fathers in a legal sense. About half of the states in the United States in 1982 had statutes relating to artificial insemination, which typically regard the husband who gives consent before artificial insemination of his wife as the father for all legal purposes; see Winborne, note 2 above, at p. 219.Google Scholar
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    See note 9 above and, for instance, CM. v. C.C. (1977), 377 A.2d 821 (N.J. Juv. and D.R.Ct.), where a woman artificially inseminated herself with the sperm of a male friend, who was granted visitation rights in the best interests of the child.Google Scholar
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    See, for instance, Andrews, L., New Conceptions: A Consumers Guide to the Newest Infertility Treatments, Including In Vitro Fertilization, Artificial Insemination, and Surrogate Motherhood ,St. Martin’s Press, New York (1984).Google Scholar
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    In Kentucky v. Surrogate Parenting Associates, Inc. ,note 3 above, Judge Henry Meigs asked, How can a natural father be characterized as either adopting or buying his own baby? ... He does not (and cannot) buy the right to adopt a child with which he already has a legal and natural relationship. (Judgment p. 3)Google Scholar
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    In Doe v. Kelley ,note 45 above, the Michigan Court of Appeal upheld a refusal to declare invalid legislation prohibiting payment in connection with adoption. The applicants were parties to a prospective surrogate-motherhood agreement.Google Scholar
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    An agreement by a person entitled to custody of a minor to transfer this custody to another is usually illegal unless authorized by legislation, except when the agreement is between the child’s two parents. Even then, however, the courts may recognize such agreements only when they appear to be in the best interests of the children; see Commonwealth ex rel. Teitelbaum v. Teitelbaum (1974), 50 A. 2d 713 (Pa. Superior Ct).Google Scholar
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    The Oklahoma Attorney General has issued an opinion that surrogate motherhood agreements involving both compensation above medical expenses and adoption are illegal as being in violation of Oklahoma’s Trafficking in Children Statute (Title 21, O.S. 1981, § 866); see Attorney General of Oklahoma ,Opinion No. 83–162 (Sept. 29, 1983).Google Scholar
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    See generally Code of Federal Regulations Title 45 Part 46 Subpart B (45 CFR 46.201–211) regarding research involving fetuses, pregnant women, and in vitro fertilization.Google Scholar
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    The International Covenant on Economic, Social and Cultural Rights, in force since January 1976, recognizes in Art. 10(1) that The widest possible protection and assistance should be accorded to the family . . . particularly for its establishment. The International Covenant on Civil and Political Rights, operative since March 1976, provides in Art. 23(2) that The right of men and women of marriageable age to marry and to found a family shall be recognized.Google Scholar
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    The International Covenant on Economic, Social and Cultural Rights recognizes in Art. 15(1) (b) the right of everyone To enjoy the benefits of scientific progress and its applications. By Art. 15(3), States that are parties to the Covenant undertake to respect the freedom indispensable for scientific research and creative activity.Google Scholar
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    The terms donation and donor are used here to refer to a genetic contributor to a child’s procreation who is not intended to be a social parent to the child on birth.Google Scholar
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    Surplus fertilized ova occur when a donor of ova is treated for inducement of superovulation and laparoscopic recovery of multiple ova for fertilization in vitro. Evidence indicates that pregnancy is most likely when three or four ova are implanted on a single occasion; see Lopata, A., Concepts in human in vitro fertilization and embryo transfer, Fertility and Sterility 40:289 (1983), at p. 298.Google Scholar
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    Where this claim is recognized before birth, it is usually limited to independently viable fetuses; see Winborne, note 2 above, at p. 352 et seq.Google Scholar
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    For an example of a fully developed model agreement, see Brophy, K., A surrogate mother contract to bear a child, /. Family Law 20:263 (1982).Google Scholar
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    See opinion of the New York City Bar Association’s Committee on Judicial Ethics, 8 Fam. L. Rep. (BNA) 4069 (Sept. 28, 1982).Google Scholar
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    See text below at note 91.Google Scholar
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    Between the conventional civil standard of proof on a balance of probabilities and the criminal standard of proof beyond reasonable doubt, the courts have developed an intermediate standard of proof on clear and convincing evidence; see Santosky v. Kramer (1982) 102 S.Ct. 1388.Google Scholar
  82. 82.
    Taxation as earned income may have different implications from taxation as, for instance, a capital gain. The transaction may be considered a contract of employment or, for instance, a contract for independently rendered services.Google Scholar
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    See Maule, J., Federal tax consequences of surrogate motherhood, Taxes 60:656 (1982).Google Scholar
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    In Jefferson v. Griffin Spalding County Hospital Authority (1981), 274 S.E. 2d 457, the Supreme Court of Georgia ordered a pregnant woman to submit to a cesarean section to save a viable fetus and transferred the legal custody of the fetus in utero to the state. See E. P. Finamore’s discussion of the case in American J. Law & Medicine 9:83 (1983).Google Scholar
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    Analogies may exist with the control of private adoption agencies.Google Scholar
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    Kleegman, S. J., and Kaufman, S. A., Infertility in Women ,F. A. Davis Co., Philadelphia (1966), 178.Google Scholar
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    Michigan seems to have been the scene of intensive lobbying, perhaps associated with the Detroit lawyer Noel Keane’s prominence in arranging surrogate motherhood arrangements. In the Michigan House of Representatives, Rep. Richard Fitzpatrick has come close to success in urging (a substitute for) his House Bill No. 4114.Google Scholar
  88. 88.
    Alaska House Bill 497, then pending passage.Google Scholar
  89. 89.
    This bill, as amended to May 18, 1982, is presented in Winborne, note 2 above, at p. 247 et seq. The bill died in the California Assembly Committee on Judiciary.Google Scholar
  90. 90.
    For simplicity, no references will be given to the numbers of the individual clauses of the proposed bills.Google Scholar
  91. 91.
    I am indebted to Larry Fox, of the Law Reform Commission of Ontario for the original digest on which this review is based.Google Scholar
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    See text above at note 33, and the detailed proposal of the Ontario Law Reform Commission, note 33 above.Google Scholar
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    In the United Kingdom, the Report of the Committee of Inquiry into Human Fertilization and Embryology (The Warnock Report), H.M.S.O. Cmnd. 9314, 1984, recognized that . . . there will continue to be privately arranged surrogacy agreements; para. 8.19, at 47. The Report recommended that criminal penalties for professional persons involved be imposed, and that agreements not be judicially enforceable, but made no provision for the welfare of the children; contrast the Ontario Law Reform Commission Report, ibid.Google Scholar

Copyright information

© Aubrey Milunsky and George J. Annas 1985

Authors and Affiliations

  • Bernard M. Dickens
    • 1
  1. 1.Faculty of LawUniversity of TorontoTorontoCanada

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