Surrogate Parenting

Some Guiding Principles for a Legislative Response
  • Joan G. Wexler
Part of the Critical Issues in American Psychiatry and the Law book series (CIAP, volume 7)


Men and women can produce babies today in other than the old-fashioned way. Modern scientific technology permits the separation of the genetic from the gestational aspects of reproduction, and allows such alternative methods as these: One party can donate either sperm or eggs. A couple can use an in-vitro fertilization technique using their own sperm and eggs. An embryo can be transplanted into a woman for gestational purposes even if her egg was not involved in the fertilization process. Furthermore, these new technologies of birth allow a married couple to involve a third party in the creative process. For example, a female third party can, by means of artificial insemination, become pregnant, and give the baby after birth to the couple.


Artificial Insemination Biological Father Adoptive Parent Surrogate Mother Surrogate Parenting 
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  1. 1.
    See e.g., N.Y. Dom. Rel. Law section 114 (McKinney 1988).Google Scholar
  2. 2.
    This procedure is known as “artificial insemination by donor” (AID). When a husband or mate is involved, the procedure is called “artificial insemination by husband” (AIH).Google Scholar
  3. 3.
    Because his wife Sarah was barren, Abraham impregnated her handmaiden, Sarah.“ Genesis 16: 2.Google Scholar
  4. 4.
    See Ethics Committee of the American Fertility Society, Ethical Considerations of the New Reproductive Technologies 36S (1986); Walter: Psychological and legal aspects of artificial insemination (AID): An overview, 36 Amer] Psychother 1982; 93.Google Scholar
  5. 5.
    Curie-Cohen M: Luttrell L: Shapiro S: Current practice of artificial insemination by donor in the United States. N Engl J Med 1979; 300:555, 558. Wadlington, Artificial conception: The challenge for family law. Va. Law Rev. 1983; 69: 465, 476.Google Scholar
  6. 6.
    In all these states a woman must obtain her husband’s consent to the procedure, except in Maryland, where such consent is presumed. The states that have such statutes are Alaska, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Kansas, Louisiana, Maryland, Michigan, Montana, Nevada, New York, Oklahoma, Oregon, Tennessee, Texas, Virginia, Washington, Wisconsin, and Wyoming.Google Scholar
  7. 7.
    Freed D, Walker T: Family law in the fifty states: An overview. Fam. Law Q. 1988; 21: 534.Google Scholar
  8. 8.
    In re Baby M, 217 N.J.Super. 313, 525 A.2d 1128 (Ch. Div. 1987), aff d in part, rev ‘d in part, remanded, 109 N.J. 396, 537 A.2d 1227 (1988).Google Scholar
  9. 9.
    In re Baby M, 217 N.J.Super. at 408–09, 525 A.2d at 1175–79. (1987).Google Scholar
  10. 10.
    In re Baby M, 109 N.J. at 463, 537 A.2d at 1261 (1987).Google Scholar
  11. 11.
    Freed D, Brandes J: Surrogate parenting; Alternative reproductive techniques, N.Y. Law J. 1989; 201: 3.Google Scholar
  12. 12.
    In another article, I have argued that custody modification after divorce should be difficult to obtain and that vigorous statutory criteria should firmly limit both the parents’ ability to bring such litigation and the courts’ discretion to make custodial changes. See Wexler: Rethinking the modification of child custody decrees, 94 Yale Law J 1985; 94: 757.Google Scholar
  13. 13.
    See, e.g., Elster: Solomonic judgments: Against the best interests of the child, 54 U. Chi. Law Rev. 1987; 54:1; Mnookin: Child custody adjudication: Judicial functions in the face of indeterminacy. Law & Contemp Probs 1975; 39:226; Oster: Custody proceeding: A study of vague and indefinite standards. J Fam Law 1965; 5:21.Google Scholar
  14. 14.
    See, e.g., Bodenheimer: The rights of children and the crisis in custody litigation: Modification of custody in and out of state. U Colo Law Rev 1975; 6:495, 506; Trombetta: Joint custody: Recent research and overloaded courtrooms inspire new solutions to custody disputes. J Fam Law 1981; 19:213, 227.Google Scholar
  15. 15.
    See e.g., Roe v Wade, 10 U.S. 113, 153–64 (1973); Eisenstadt v Baird, 405 U.S. 438, 453–55 (1972); Griswold v Connecticut, 381 U.S. 479, 485–86 (1965).Google Scholar
  16. 16.
    Garrison M: Surrogate parenting: What should legislatures do? Fam Law Q. 1988; 23:149.Google Scholar
  17. 17.
    See N.Y.S. Task Force on Life and the Law: Surrogate Parenting: Analysis & Recommendations for Public Policy, May 1988.Google Scholar
  18. 18.
    See In re Baby M, 217 N.J.Super. at 331–32, 525 A.2d at 1136–37 (discussion of trial judge).Google Scholar
  19. 19.
    See Blakeslee: Trying to Make Money Making `Test-Tube’ Babies, The New York Times, May 17, 1987, at C6, coil; Mosher: Pratt: N.Y. Times, May 17, 1987, at C6, coil; Mosher: Pratt: Fecundity and Infertility in the United States, 1965–82, National Center for Health Statistics Advanced Data #10, Table 3; Feb. 11, 1985; 50% Success Rate in $1 Billion Infertility Fight. The New York Times, May 18, 1988, A25, col 1.Google Scholar
  20. 20.
    In February 1989, the House of Delegates of the American Bar Association approved the Uniform Status of Children of Assisted Conception Act, which had been approved by the National Conference of Commissioners on Uniform State Laws on August 4, 1988. Although this Act addresses all form of assisted conception, its provisions can be analyzed in terms of procreation by surrogate parenting only. It provides two alternatives that states may choose: one permitting, but regulating, surrogate parenting, and one prohibiting it. Thus far, no jurisdiction has adopted it. The Act recommends a number of provisions that conform to my thinking, and some of what follows in text is based on them.Google Scholar
  21. 21.
    See Uniform Status of Children of Assisted Conception Act, Comment to section 7, National Conference of Commissioners on Uniform State Laws, 1988.Google Scholar

Copyright information

© Springer Science+Business Media New York 1990

Authors and Affiliations

  • Joan G. Wexler
    • 1
  1. 1.Brooklyn Law SchoolBrooklynUSA

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