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Surrogacy: The International and Domestic Legal Implications

Surrogacy: The International and Domestic Legal Implications

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Published by: Christopher Gasper on Feb 04, 2012
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By: Christopher Gasper

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We have entered a new age. A relativity new and exciting area of reproductive technological advancement, which has been encountering challenges, is Assisted Reproductive Technology (³ART´). ART refers to ³any medical means of aiding human reproduction.´1 ART has been developed to help individuals and infertile couples to conceive children, usually through medical and other untraditional procedures.2 The most common types of assisted reproduction are: in vitro fertilization, sperm donation, egg donation, and surrogate parenting arrangements (the main focus of this paper).3 Rarely in modern society does there exist such a moral uncertainty more obvious, and more complex, than in the area of surrogacy. Surrogacy, however, is so recent that state courts and lawmakers continue to discuss, define and rule on its many nuances. While the debate has been vigorous with regards to surrogacy, the discussion has reached neither a consensus nor a satisfactory resolution to the complex moral, legal, and social issues raised by surrogacy. Since surrogacy can become more than just a safe and effective alternative to human reproduction, it should be defined and protected under law so that the option of surrogacy can be made possible through a legally binding contractual agreement between adoptive parent(s) and a surrogate mother. Unfortunately, there doesn¶t seem to be a single legislative position that can possibly accommodate all the competing views or solve the moral dilemmas. Here, the combination of domestic and international legal environments, technological development, and differing types of societal acceptable family structures deals a huge blow to that of the traditional family. Arguably for some people, the demise

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¶ If surrogacy did flourish as a criminal activity. there still exists a resistance to a possible solution to the most unfortunate timeless problem of childless parents seeking witch doctors and jungle cures for their reproduction concerns. Ultimately. Surrogacy is that solution rendering a safe alternative for these would-be parents. issues stemming from conflicts between adoption law. However. In the US. Russian weapons on the black market after the fall of the USSR. there is not one right choice. contract law. The risk for abuse and exploitation of women and the commercialization of babies.of µnormal¶ family values in the Western World is a factor towards the argument against the surrogacy pregnancy option for many individuals and couples. For the legal community. could become realities. the state should not make the choice for individuals. family law. Furthermore. the two greatest risks of surrogate motherhood. while there is a global push to celebrate diversity. However. surrogacy is a problem for most societies because it forces us to rethink our values and the very basis of those values. money would become the focal point of the transaction as it did with alcohol during the 1920s in America. there are persons with Page | 3 . surrogacy risks prohibition (as seen in some states and countries around the world) which could lead to surrogacy going µunderground. and tort law tend to make surrogacy a challenging and quite limited option for most. Wade. both before the arrangement is finalized and afterwards. it is the state¶s obligation to provide guidance and protection with surrogacy. and even abortion before Roe v. a real alternative solution does exist which does allow for would-be parents a chance to be able to enjoy the most miraculous and wondrous event on Earth: Life. However. just like with abortion. As with most moral choices. In the absence of clear regulations and statutes.

PART II: Definitions. disappointment. Finally.´4 There are several medical procedures available to a surrogacy arrangement. If the adoptive mother shares her DNA with the embryo. This method is commonly referred to as traditional surrogacy. we will first look at how surrogacy is defined. medical procedures Surrogacy generally refers to an arrangement (or contract) ³in which one woman bears and gives birth to a child for a person or a couple who then adopts or takes legal custody of the child. and the surrogate mothers from exploitation. should be a choice for people to make and proper law should be in place to protect all parties involved. and loss? In order to better answer these questions. the child. Overall. So.different ideals and concepts of morality who must be allowed to make a fully informed choice and also to be required to take responsibility for their actions. surrogacy. Most commonly sperm is implanted into the surrogate mother by Artificial Insemination. is surrogacy right? How should laws be shaped and enforced when conflicts arise from surrogacy parenting agreements? Will a society create a black market for babies if the law remains silent on the issue or bans it all together? How can legislature protect the intended parents. types of. than that is a gestational surrogacy which refers to when a fertilized embryo. the conclusion is that surrogacy is a good option for infertile couples and proper attention to both domestic law and international law needs to be paid to stem off the creation of a black market for surrogacy. like abortion. to which the surrogate mother shares none of Page | 4 . Then we will discuss the motivations of people to enter into surrogacy arrangements followed by an analysis of law and public policy.

the surrogacy is considered a commercial surrogacy. whether past or present. not every case of infertility is curable. 7 Even with these basic categories. PART III: Motivations of the Adoptive parents and the Surrogate Mother Society. 6 When the surrogate mother does not receive any compensation for the act of surrogacy other than reasonable expenses. and policies are central to how nations view themselves and their prospects for the future. The egg comes from a donor and the sperm is injected into the egg through the process of ICSI (Intracytoplasmic sperm injection). there has been ³a substantial revision (upward) in the number of infertile women. practices. As many as 1 out of 5 couples diagnosed with infertility eventually become Page | 5 . except for reasonable expenses such as medical and nutrition. then the surrogacy is referred to as an altruistic surrogacy. Injecting the sperm into cytoplasm of the oocytes to allow fertilization is called In vitro fertilization. the sperm donor. The complex nature of surrogacy makes creating clear cut legislation challenging at best. and the adoptive mother. Infertility is not a new topic and science has worked endlessly to find solutions. believes that the family plays an essential role in creating and socializing future citizens. the adoptive father.5 If the surrogate mother receives compensation for the act of carrying and delivering the baby. is implanted into the uterus of the surrogate mother. the surrogate mother. Reproductive issues. surrogacy can become even more complicated when the child has five parents: the egg donor.her DNA. Since 1995.´8 Furthermore. Societal pressures ensue upon couples to thus produce children and the intensity of those pressures can increase for a childless couple.

Even with infertility aside. discomfort. Gay couples and single people are emerging as a new group of adoptive parents seeking surrogacy as a solution to their dilemma. and step-parenthood is that the child will carry their very own DNA. 11 It is no wonder why some people are motivated to pursue surrogacy over other methods when modern science fails Page | 6 . The traditional forms have been adoption.´9 There are.10 Whether this decision is factored on by pain. step-parenthood. from advances in medical science. or even physical deformations (stretch marks. risk. The benefit surrogacy offers gay couples and single parents over adoption. To the extent that the pain is caused by a sense of failure to achieve conception or to the extent that the pain is due to the absence of the experience of raising and nurturing a child. clear and reasonable steps that people can take to tackle the physical causes of infertility. foster care. some people in society seeking a child may want a child of their own without the hassle of dealing with the physical 9 month gestation period followed by actual birth. scarring. however less is done to address the emotional and social pain of infertility. not including advanced techniques such as in vitro fertilization (IVF). excessive weight.pregnant without medical treatment. ³More than half of couples with infertility become pregnant after treatment. The non-traditional alternative is surrogacy. etc). we must recognize that there exists many powerful motivations for people to seek alternatives to traditional and natural forms of bringing a child into their lives. foster care. and other less formal arrangements. it is clear that traditional methods may not be ideal for everyone. Surrogacy becomes a more favorable option when you couple this with the fact that adoptions in the US have on average a 3-5 year wait.

16 A second factor of the motivation of surrogate mothers found by the study in the American Journal of Psychiatry was that some surrogate mothers felt that the act of giving a child to a childless couple would help them to master unresolved feelings caused by the loss of a baby whether voluntarily or involuntarily.000 to participate in a surrogacy arrangement. 14 Of prospective surrogate mothers questioned. The American Journal of Psychiatry. a majority indicated a sense of contentment. and an enjoyment of the attention given to them during pregnancy. attractiveness.´). some participants of the study made comments indicating their absolute enjoyment of being pregnant.to cure infertility and other traditional methods are too costly12 and carry a lengthy wait schedule. Page | 7 . 15 Further still. were not the sole reason as indicated during this study for a woman to want to be a surrogate mother. 17 Finally. 18 Despite this majority. the last motivation discovered is that many surrogate mothers are motivated by economics. A large majority of women interviewed (89%) indicated that they would require a fee of at least $5. however. economics. 13 One of the factors is the enjoyment a mother has of the pregnancy itself. 19 (Dr. There is very little research available concerning the motivation of woman to become a surrogate mother. however. uncovers three motivating factors. Franks claims that the motivation of surrogates ³seem[s] to be an interesting mixture of financial and altruistic factors. Women who either wanted to become or who optioned to become surrogate mothers did so for more than just one reason.

22 Alabama. Nevada. both parties may enter into a contract to define the terms of the arrangement called a surrogate parenting agreement. Generally. frequency of medical exams. fees for surrogacy service. Page | 8 . if not both. child support dealings. the intended parents will enter into a contract with the surrogate mother who will agree to carry and deliver a child for them. 20 As noted above. and dispute resolution. gay couple. the legality issue of surrogacy is handled by state law in a variety of ways. etc). alcohol and tobacco absence. termination of surrogate mother¶s parental rights. limitations on diet (including but not limited to drug intake. New Hampshire. Florida. there are many different types of surrogacy arrangements. Illinois. and Virginia permit the formation and enforcement of surrogate agreements and regulate these agreements.PART IV: General Description and US Law Surrogacy is usually chosen by an infertile couple. for example. Regardless of the type of surrogacy chosen. In the United States. vitamin supplements. Some states have enacted statutes which allow for legally binding surrogacy agreements that the parties to the contract must satisfy by performance. of the intended parents. and (2) relinquish any and all rights to the child. or a single person because it allows those people a chance to have a child without the wait time of adoption and to have a child that shares the DNA of at least one.´ 21 The surrogate parenting agreement specifies terms of the contract such as payment of medical expenses. A surrogate parenting agreement is ³an agreement between a person (the intentional parent) and a woman (the surrogate mother) providing that the surrogate mother will (1) bear a child for the intentional parent.

Money is almost always exchanged during a surrogacy agreement for services. expenses. and Utah have declined to enforce surrogacy agreements as void and unenforceable as against public policy. North Dakota. ³the legal issues generated by surrogacy agreements must be resolved by reference to public policy considerations or statutes generally relating to adoptions. have passed statutes that only invalidate surrogacy agreements which involve compensation for the surrogate mother. some states. In these states. The surrogacy process is argued to be similar and exploitable as a means of selling babies for profit.´ 26 PART V: Public Policy Public policy concerns will be raised during any attempts at legislation or court ruling due to the actual nature of ART. Indiana. and compensation.Arkansas. Louisiana. The issue. and Washington. however. the District of Columbia. Kentucky. falls heavily on the responsibility of society to protect women in economic Page | 9 . Nebraska. Surrogacy services are like any other service in that typically the provider of the service gets paid for rendering said services. Iowa. it is impossible to avoid the following basic public policy concerns. This does not mean that payment for surrogacy services is an indication of exploitation of any kind and it also does not constitute an ethical conflict. New York. child custody. or the termination of parental rights. 23 Arizona. 24 Furthermore. Michigan. When parties enter into a surrogacy parenting agreement and perform a surrogacy. and West Virginia have exempted surrogacy agreements from criminal punishment. 25 Some states have not done anything legislatively towards surrogacy.

000 for her surrogacy service plus expenses. however. However. countries such as Japan have proposed a ban on commercial surrogacy arrangements. The Donum Vitae outlines the Catholic Church¶s position on surrogacy. therefore.´ 28 Internationally. ³[T]he moral relevance of the link between the meanings of the conjugal act and between the goods of marriage. demand that the procreation of a human person be brought about as the fruit of the Page | 10 . Abraham went into Hagar and impregnated her in order to have a son. "Abram¶s wife Sarai took Hagar the Egyptian.´ 27 In this case. It cannot be denied that a form of surrogate pregnancy occurs in scripture. 29 India. 16:3). has passed law making surrogacy legal. New York discards the view that ³rights as fundamental as the right of a parent to a relationship with his or her child should be bought and sold or waived irrevocably in advance of the child's birth. Abraham (then called Abram) did this because his wife Sarah had not produced a son. The Ohio Supreme Court has ruled ³that nothing in the laws of Ohio prohibits gestationalsurrogacy contracts or enforcing the terms of the contract.hardships or in poverty stricken areas around the world of being exploited. and gave her to her husband Abram as his wife. 31 One thing that is commonly found is surrogacy mothers rarely are willing to go through a pregnancy without some form of compensation. her maid. as recognized by the Supreme Court of India. as well as the unity of the human being and the dignity of his origin.$28." (Gen. 30 India is a popular destination for surrogacy parenting agreements because of the low cost offered by hospitals and clinics.000. the dispute was over the legality and enforcement of a surrogacy contract where the surrogate mother was paid $20. Complete packages range in price from $10. The Catholic Church has made a firm public stance against surrogacy.000 .

" 32 Surrogacy is also considered a violation of the rights of the child. UK reported in 2002 that surrogate mothers only rarely had any reportable difficulty when it came to relinquishing their parental rights to a surrogate child and showed that the intended mothers showed a high level of warmth and caring towards their child. and moral elements which constitute those families. Consequently. The Family and Child Psychology Research Centre in City University. Several studies have concluded that this isn¶t the case. London." 33 Furthermore. psychological." 34 Those opposed to surrogacy argue that surrogate mothers might have a hard time relinquishing their parental rights after birth because of the personal bond mother and child form during pregnancy.36 A common argument presented on the debate of surrogacy is whether the woman who agrees to a surrogacy parenting agreement fully understands both the physical and emotional risks of that surrogacy parenting agreement. Kronman is a Professor at Yale Law School ) argues that many surrogate mothers will not anticipate the emotions they might experience during a surrogacy pregnancy. these women are not able to properly understand and with adequate mens rea form enough of an understanding of the commitment and consequences making the Page | 11 . Professor Kronman (Anthony T. the Catholic Church describes surrogacy as a breakdown of the family to their detriment and fails to meet the requirement of maternal love because surrogacy sets up "a division between the physical.conjugal act specific to the love between spouses. since it "deprives [the child] of his filial relationship with his parental origins and can hinder the maturing of his personal identity.35 Studies of surrogate mothers have also illustrated a range of methods employed by surrogate mothers to distance themselves emotionally from the child throughout the pregnancy.

contract law.¶ have all her medical expenses paid for. A µcooling off¶ period would not prevent harm. during the cooling-off period the surrogate mother would be able to renounce her performance under the surrogacy parenting agreement without incurring any legal penalties. This unfortunately leaves the courts with a perplexing paradox where outcomes to disputes over surrogacy agreements are nearly infinite and almost unpredictable. if surrogate mothers have the option of changing their mind about their performance requirements. 38 After the cooling-off period has ended. damages. Furthermore. then the surrogacy agreement would then become enforceable. While public policy does weigh into whether a contract is enforceable. child custody. In the absence of statutes and legislation regarding surrogacy. However. or other forms of compensation to the other contracting party. This is counter-productive to current contract law and theory. then that would make entering surrogacy arrangements both very risky and unfair for the intended parents. Establishing legislation and statutes to address surrogacy would specify how the court should proceed under law with dealing with Page | 12 .surrogacy decision itself an irrational choice by the woman. it would create a situation where a would-be surrogate mother could fraudulently induce intended parents into entering into a surrogacy agreement with the true intent to obtain a µfree ride. termination of parental rights. because the court would have to look to law in other areas such as adoption. 37 One possible solution to this dilemma is to legally require a µcooling-off¶ period after the birth of the surrogate child. and still be able to keep the child without incurring any penalties. and if the State allows for. the demand on the court system would increase indefinitely. family law. it would create an environment for even further harm.

asserting that there were no children of the marriage. The husband. surrogacy is regulated differently as you move from state to state (see above sections for examples). PART VI: California Law In the United States. and the wife filed her response. respectively. Parties to a surrogacy agreement can be reasonably certain that their intentions as expressed in their contractual agreement will be upheld in a California court. such consistent rulings allow for the outcomes of surrogacy agreements to be predictable. has been found to have a favorable legal environment for surrogacy by taking the lead through passing laws and by the California Courts to expand existing Family Law statutes to protect adoptive parents and surrogacy mothers. asserting that the parties were expecting a child by way of surrogate contract.disputes and in return would provide uniformity of outcome. in particular. Of all 50 states. Buzzanca. 1998) was whether a married couple who entered into a surrogacy agreement using donated sperm and egg where the legal parents. bounded by family law. Page | 13 . This certainty is provided by the consistent ruling of California courts to uphold the rights of the intended parents of a surrogacy parenting agreement. two adopting parents entered into a surrogacy contract where both the sperm and egg DNA did not come from the adoptive parents or the surrogate mother. John A.´39 The question presented to the court in re Marriage of Buzzanca (March 10. California stands out in the world of surrogacy because they have passed the most lenient surrogacy laws. In re Marriage of Buzzanca. Furthermore. ³filed a petition for dissolution of marriage. California.

´41 Under the Uniform Parentage Act.42 The court held that public policy did not bar the surrogacy contract. heard by the California Fourth District Appellate Court. was the natural mother. John Bozzanca owed child support to Luanne Bozzanca. The court¶s ruling in Johnson v. Men. the court ruled when ³the two [factors] did not coincide in one woman. do not have that option.´40 Just as a husband ³is deemed to be the lawful father of a child unrelated to him when his wife gives birth after artificial insemination´. Therefore.´44 The Court also stated in effect that the intended mother who carries a child born from donated egg is the mother of the child by the same reasoning. As such. Even though neither the wife nor husband was biologically related to the child. although the two women to the surrogacy contract could both prove their maternity. Surrogacy Page | 14 .of the child in question. The case. she who intended to procreate the child and raise as her own. ³they were still her lawful parents given their initiating role as the intended parents in her conception and birth. matching DNA between mother and child as well as proof of giving birth. the tie is broken in favor of the woman who was intended to be the mother as expressed in the surrogacy contract. held that the parties were the lawful parents of the child. so will a husband and wife ³be deemed the lawful parents of a child after a surrogate bears a biologically unrelated child on their behalf. however. the husband and wife were the lawful parents of the born child. Women are able to be single parents by simply going to a sperm bank and undergoing artificial insemination.43 Although the Uniform Parentage Act recognizes maternity by using two factors. Calvert was a further victory for surrogacy by upholding that the gestational surrogacy contract was legal and enforceable.

the court ruled that the intended mother received parental rights because the egg was donated and was not of the surrogate mother. In order for the father to avoid possible custody loss. if the surrogate mother decides to keep the child. However. a single man would either remain a co-parent with the surrogate. if the surrogate mother changes her mind about the agreement and claims a right to the child. men face a larger risk of losing parental rights when they use a surrogate mother¶s egg instead of a donated egg. under Moschetta. Traditionally. Under the court¶s reasoning.allows for men to be able to become single parents. the court affirmed that the surrogate mother ³was the child's mother because [the surrogate mother] was both the biological and birth mother of the child under the Uniform Parentage Act. because under Buzzanca. where the surrogate mother does not claim parental rights. In Moschetta. it is recommended that the father should use a donated egg to avoid this possibility. the court will likely follow the intentions of the parties. Unlike with women. the single man would be the sole parent and the surrogate mother would not have parental rights. she might obtain a judgment in her favor if the child shares her DNA and she gives live birth to the child. Infertile couples from other states and countries around the world find California a beneficial choice for surrogacy because of the favorable legal environment for Page | 15 . by seeking a surrogate mother and using either their sperm or donated sperm and the surrogate mother¶s egg or a donated egg. or attempt to terminate the surrogate's maternity through a cumbersome and unpredictable abandonment proceeding.´45 After the Buzzanca court's explanation of Moschetta. This is an attractive option for gay couples as well who want to adopt but also want to be able to have a child sharing their DNA. by abiding to the intentions of the parties expressed in the surrogacy contract. if they choose.

. it would be harder for the father to argue that a tie exists and the court would more likely grant parental rights to a surrogate mother. a surrogate mother claimed parental rights on the grounds that a gestational surrogacy contract with the biological father violated Ohio's public policy and was unenforceable. In a recent Ohio case. there exists little if any law pertaining to surrogacy.48 Contracts.B. are entered into by two parties and those parties are generally expected to honor the contract that they entered into. after finding that little law existed regarding surrogacy contracts.F. in general. but gives way to public Page | 16 . However. then the chance of a surrogate mother winning parental rights would be reduced if not eliminated by the court¶s ruling in Buzzanca. J. the liberty of contracts does not carry an absolute and unlimited right. If a donated egg is not used. PART VII: Ohio Law In many states across the US. v.46 The Court of Appeals. determined that ³nothing in Ohio law prohibited such contracts or the enforcement of the terms of the instant contract against the surrogate mother and the surrogate mother's husband. For these reasons above. whose own egg was involved. the Ohio court noted that a traditional surrogate. An alternative viewpoint would suggest that if a surrogate mother µdonates¶ her egg to the surrogacy agreement. California remains the most favorable state when it comes to surrogacy and should serve as a model for other states. might have a different legal position. which would violate the intentions of the surrogacy contract. D.´47 Like in California (see above section).upholding the intentions of the surrogacy contract.

000 payment for "services" is too hard to separate from the requirement of relinquishment of parental rights. Since Ohio does not have any public policy against gestational-surrogacy.000 for her services.49 However. PART VIII: International Law. the Ohio court ruling moved this complication into the light of justice by deciding the terms of the contract as legally binding and ruling based on the µfour corners¶ of the surrogacy contract. In a further victory for surrogacy.policy (see above sections about Public Policy).50 The dissent also argued the section of the contract which allows for the father to avoid child support payments if custody is awarded to him as against public policy and current Ohio Family Law. the Ohio Supreme Court found that surrogacy is different from adoption and dismissed those adoption statutes as off-point. the dissent points out that the $20. Fortunately for surrogacy and intended fathers. no public policy was violated. the biological father contracted with a gestational surrogate to carry eggs implanted from a nonparty donor. In this case. the affordability offered by some countries.51 One of the legal complications with surrogacy is with assigning child support when there is a parental rights dispute. The surrogate contract stated that the surrogate mother would be paid $20. would require her to relinquish her parental rights. and permit the biological father to avoid child support payments from the surrogate if she was awarded custody. India Surrogacy programs across the global have been increasing due to the increasingly restrictive global market for international adoption. 52 It Page | 17 . which cannot be bargained for. and the less restrictive legal barriers to surrogacy arrangements.

Currently. Germany. or the individuals who travel to India to enter into the surrogacy agreements. it must be noted that because of the easily exploitative nature of surrogacy that in order for surrogacy to be a viable and fair option for infertile couples across the globe. India is quickly becoming the most popular place in the world for surrogacy arrangements. Israel.53 However. Many countries across the globe either ban or harshly regulate surrogacy such as Italy. however as even a proponent Page | 18 . a global market for surrogacy has emerged. on a national level. The reproductive segment of India¶s medical tourism market is valued at more than $450 million a year.is approximately definite that cross-border surrogacy arrangements will increase. In the 1980s. Canada. Despite various restrictions and sanctions passed by some countries.55 While each country is free to create and enforce their laws as they see fit. careful attention must be given to the international legal environment for surrogacy.54 As it goes with new markets. This may seem like a favorable condition to those seeking surrogacy in a country where surrogacy is banned or severely regulated. The legal inconsistency between countries has made it common for parties to cross borders to other countries to enter into surrogacy arrangements. the interests of Indian women. India currently has access to modern technology and skilled medical personnel capable of providing surrogacy programs at a lower cost than comparably in the United States. India has done very little to protect. the children. and the United Kingdom. the United States was practically alone in the world with regard to permitting commercial surrogacy arrangements. unlike the United States. France. the surrogacy market is no different as there are very few checks and balances which unfortunately allow for exploitation of those with the least amount of bargaining power: surrogate women and children.

because the debate surrounding surrogacy involves a complex web of philosophical. Inconsistent legislation amongst the states already creates parentage issues for children born of surrogacy in the United States. In some countries. the adoptive couple may be listed on the child¶s original birth certificate by court order. It may be a simple enough process to enter a surrogacy agreement across borders. legal. The goal should be to create a positive legal environment which is supportive of surrogacy but also protects all parties involved.56 Children born to a foreign surrogate mother can add more layers of complication to each surrogacy case. Some adoptive parents have even faced criminal penalties for attempting to take babies who were allegedly born through surrogacy arrangements out of the country. Birth certificate regulations and practices in foreign countries may lead to the surrogate born child to encounter legal parentage issues when entering the home country of the adoptive parents.57 PART IX: Conclusion Legislatures and political systems must be engaged in and informed by the debate surrounding surrogacy if the legislation adopted is to be effective and complete.for surrogacy. however obtaining a birth certificate or citizenship for the child may prove to be more of a challenge than some couples anticipates. Page | 19 . or the adoptive couple must take additional steps for an amended birth certificate to be issued such as a step-parent adoption. A worse case is when adoptive parents are not able to have their name placed on the child¶s birth certificate. moral. the legal inconsistencies across borders is unfortunately leading to complications with surrogacy arrangements.

such as a home study of both couples and potential surrogate mothers. problems are solved on the front end of the agreement. caring environment. If a state or country should chose to allow for surrogacy. The legislation should seek to establish a pre-contractual procedure requiring a psychological and physical examination before either party seeking surrogacy. that entity should implement legislation that attempts to balance both the public policy concern for the surrogate mother along with the concern for the infertile couple or person.and social issues. are legally able to enter into a binding contractual agreement. both at home and in society. Children risk being needlessly harmed psychologically if they are told in any manner that they are a commodity or unnatural. If lawmakers and politicians are mindful of the parameters of the debate. The child needs a stable. they will be more successful in drafting legislation that will anticipate and counter opposing arguments and will enhance the positive aspects of surrogacy. The function of the legislation should be to make certain that. One way to streamline this proposed process would be to carry over existing tests. from current adoption agency procedure and law. Page | 20 . to the reasonable extent possible. The contract that is to be used should provide for all medical expenses and insurance to be paid for by the couple and should have terms addressing the possible termination of the pregnancy. Some laws currently enacted call for granting a µgrace period¶ to the surrogate after the birth to allow the surrogate mother a chance to decide whether she wants to surrender her parental rights or share them with the intended father. The child born of surrogacy arrangements has the same needs as any other child. couples seeking a surrogate and potential surrogate mothers.

The law should establish a fee cap on compensation above expenses. surrogacy can be a wonderful and productive alternative for infertile couples. A µgrace period¶ would destroy the benefit of surrogacy and allow for exploitation by surrogate mothers of intended fathers¶ income in the form of lost money spent on expenses and future child support as well as causing undue emotional and financial hardship on the intended parent(s). not to mention fair. Furthermore. cost of living. In conclusion. she cannot claim any child support and must repay back all money (medical expenses.In order to provide for a reliable and just contractual agreement. most problems can be solved through careful and diligent contract drafting combined with certainty from the legal system. After the birth of the child and when the surrogate relinquishes her parental rights. As with most things. the fee should be rendered even if the baby is stillborn or does not survive the birth. Page | 21 . etc previously paid for by the intended parents) to the intended parent(s). careful construction of laws and practices are required. Due to the complex nature of surrogacy. A possible solution to this would be that if the domestic law would support a µgrace period¶ than that law should be followed with another set of laws (or even the contract could contain such clauses) stating if the surrogate mother changes her mind and decides to keep the child. the law should establish a presumption that the wife of the intended couple is the mother of the child. no µgrace period¶ should be allowed. The surrogate mother has still tendered her services whether or not the baby is a perfectly healthy baby or exactly what the intended parents were expected. Allowing payment to the surrogate recognizes the time and effort that she has spent on behalf of the intended parents. but not prohibit compensation altogether to avoid exploitation of surrogate mothers especially in poverty stricken areas of the world.

without intelligent and informed decisions on behalf of legislatures. the solution to surrogacy begins with education on the subject and ends with bringing into this world healthy and happy babies who one day might cure cancer. but it is a choice that all people should be allowed to make for themselves.Surrogacy is not a perfect alternative. For these reasons presented. However. surrogacy could become a very terrible thing in some parts of the world. If two parties are willing to enter into a surrogacy arrangement. end poverty. or even take the first steps on Mars. Page | 22 . then the law should ensure completion of both parties¶ performance and if damages or loss occurs to cure those damages fairly and justly.

12 (The average cost of adoption. a change in horomones. http://www. Id.com/Surrogate+Motherhood. differing weight gains hardly ever lost. This generalization comes from the popular American celebrity culture of 7 8 9 10 adopting foreign babies instead of rearing children of their own.childwelfare. 11 http://www. as reported in the latest Adoptive Families adoption cost survey (2009-2010). 2004).gov/pubmedhealth/PMH0002173/.000 (before the federal tax credit and employee adoption benefits)) Page | 23 . most women are left with stretch marks.ncbi.1 Black's Law Dictionary 131 (8th ed.gov/systemwide/statistics/adoption. was around $30.thefreedictionary.nih.org/article/S0015-0282(98)00103-4/abstract. http://legaldictionary. http://www.com/cost/articles/how-much-does-adoption-cost. 6 Id. Retrieved 2008-01-06. and even a scar if a C-section is performed. "Assisted Reproductive Technology (ART) Glossary" Reproductive Technology 2 3 4 5 Council. http://www. Id. It is easier to apply for adoption than to risk your physical appearance by going through pregnancy.fertstert. Medical data shows (plus experience) that after pregnancy. Id.nlm.cfm#gen.theadoptionguide.

23 See Ala. Nev.15 (West 2007). Code Ann. Id. § 25-218 (2007). Ann. Motivation of Surrogate Mothers: Initial Findings. §§ 31-20-1-1. Rev. Ind. Code § 16-402(a) (2007). Id. Stat. Ann. Code Ann. § 722. Code § 26-10A-34 (LexisNexis 2007).´). Comp.. Black's Law Dictionary 1485 (8th ed. § 168-B:16 (2007). N.C. Mich. 750 Ill. § 710. W. Stat. J. supra note 32. Rev. D. 14 Id. Rev.000. at 118. at 117 (³Of 122 women. Iowa Code Ann. Va. Laws Ann. Code Ann.855 Page | 24 . Black's Law Dictionary 1485 (8th ed. 19 Id. See Fla.045 (LexisNexis 2007).13 Parker. § 48-22803 (LexisNexis 2007). supra note 32.H. Stat. 45/6 (West 20 21 22 2007). Ark. 24 See Ariz. 2004). PSYCHIATRY 117 (1983).. 140:1 AM. -2 (West 2007).11 (West 2007). § 9-10-201 (West 2007). Code Ann. 108 (89%) said that they required a 15 16 17 18 fee for their participation: most required at least $5. Ann. Id. 2004). Ann. Ann. -160(B)(4) (2007). at 118. § 126. § 742. Stat. Va. §§ 20-159. Stat. Comp. Id.

B. Annotation. Law § 122 (McKinney 1999). Congregation for the Doctrine of the Faith: Donum Vitae. v.info/EJ64/EJ64H.htm (last visited Oct. La. BBC World. § 76-7-204 (West 2007).japantoday. Stat. 27 J. § 25-21. Rev.200 (2007). Validity and Construction of Surrogate Parenting Agreement. N. Code § 14-18-05 (2007). N. Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day [hereinafter Donum Vitae] http://www. Rel.F. 25 See Ky.. 4th 70.health. Ann. 31 Regulators eye India's surrogacy sector.L. Rev. 2). Stat. The Associated Press (2007-12-30).us/nysdoh/taskfce/taskbio. Dom. Stat. Neb. §§ 26. Wash. 33 (Donum Vitae II. 11. India Business Report. 2009. Utah Code Ann. Rev. By Shilpa Kannan. § 9:2713 (2007). Ann. .Y. 32 (Donum Vitae. 77 A. II. 29 http://www. § 199. 26 Danny R.(West 2007).eubios.ny. Page | 25 .230. 28 http://www.D. 3d 363 (Ohio 2007). Veilleux. 116 Ohio St. "India's surrogate mother business raises 30 questions of global ethics".htm. Rev.R.state. Retrieved 2008-07-14. Cent. 74 (1989).26.590(4) (LexisNexis 2007). Code Ann. Daily News.240 (West 2007). Retrieved on 23 Mars. 2007). 4) Joseph Cardinal Ratzinger.com/jp/news/430424 Kyodo News. New York State Department of Health: The History of the Task Force. D.

with Wallin and Crosby. II. Kronman. J. Susan et al. 6. 1998). 10. Vasanti Jadva et al. Vol." Medical Anthropology Quarterly 17 (1):7898. 36 See Teman. 89 YALE L. Teman. in imagination.´) 38 BLACK'S LAW DICTIONARY 302 (5th ed. Contract Law and Distributive Justice. 1979) In re Marriage of Buzzanca. supra notes 33-35 and accompanying text. 39 (The husband filed for divorce six days before the birth of the child. Surrogacy: the experiences of surrogate mothers. Human Reproduction. 37 See Kronman. Fiona et al. JJ. See MacCallum. Developmental Psychology. (Opinion by Sills. 2004. 3). 18. App. v40 n3 p400-411.[4]. 472. 1334-1342.. Kronman. 4th 1410 (Cal.. 61 Cal. No.J. Golombok. supra note 148. (³[T]he pressing immediacy of our desires can paralyze our ability to anticipate.34 (Donum Vitae. 475 (1980). at 793. and the intended father claimed that since he was not the biological father of the child. Berkeley: University of California Press. Elly (2010) Birthing a Mother: The Surrogate Body and the Pregnant Self. 2003. Families Created Through Surrogacy Arrangements: Parent-Child Relationships in the 1st Year of Life.) Page | 26 41 . Id. P. Vol. 2003. the moral consequences of our actions. Surrogacy: The experience of 35 commissioning couples Human Reproduction. Elly (2003) "The Medicalization of 'Nature' in the Artificial Body: Surrogate Motherhood in Israel. he was not the child's father and could not be forced to adopt.) 40 Id. concurring. 18. No. 2196-2204.. 4th Dist. App.

Delhi IVF and Fertility Research Centre. Id.com/ Page | 27 . App. 29. 53 Neeta Lal. Feb. A Labour of Love. Calvert. ABC NEWS. 6 MINN.000 surrogate children since he opened his clinic in 1995). 5 Cal.000 in the U. http://abcnews.khaleejtimes. v.asp?xfile=data/weekend/2008/Febr uary/weekend_February116. 1994) J. 4th 1218 (Cal. Womb for Rent: The Future of International Trade in 43 44 45 46 47 48 49 50 51 52 Surrogacy. App. In re Marriage of Moschetta. Medical Director. GLOBAL TRADE 329 (1997) (noting that adoption intermediaries have already taken advantage of the strong economic incentives of the international baby market with surrogacy soon to follow as a natural substitute to adoption). 28. 4th 84 (Cal. Id...S. J.B. 2007. 54 Cheaper Overseas: Surrogate Mothers. Id. Anoop Gupta.000 in India and $60. 116 Ohio St. 25 Cal. Iris Leibowitz-Dori. Id. 2008.F. 1993) Id. Note.42 Johnson v. KHALEEJ TIMES. 3d 363 (Ohio 2007) Id. Id. Sept. available at http://www. 4th Dist.go.xml&section=weekend&col= (reporting that Dr. D. New Delhi claims he has delivered over 3. In-Vitro Fertilization is $6.com/DisplayArticle.

24 J. 25 CRITICAL SOC. see also Ramachandran.guardian. 6. 55 For tables of comparative international laws on surrogacy. 57 See Police Detain American Woman Attempting to Take Newborn Baby Out of Ukraine.uk/ world/2006/mar/20/health. L.chasingevil. GUARDIAN. SURROGATE MOTHERHOOD AND THE POLITICS of REPRODUCTION 24-25 (2007). 2006. to Jaycee B: Fathers.topstories3 (noting that fertility market is worth about 250 million pounds per year). 20. UKRANIAN NEWS AGENCY. CONTEMP. Page | 28 . Hale.html.GMA/story?id=3664065&page=1 (600 IVF clinics in India bring more than $400 million a year into the local economy). Reproductive Tourism ± a Price Worth Paying for Reproductive Autonomy?. 2007. at 26. supra note 51 (reproductive tourism valued at more than $450 million in India). http://www. POL¶Y 91. Nov. British Couples Desperate for Children Travel to India in Search of Surrogates: Ethics under Scrutiny as Would-be parents are Enticed by Lower Costs and Relaxed Laws. 93 (2005). From Baby M. Mar. Note.co. 335. EricBlyth & Abigail Farrand. Mothers. Randeep Ramesh. see SUSAN MARKENS. 56 Jerald V. 373 (1998).org/2007/11/hatemonger-arrested-for-human. and Children in the Brave New World. available at http://www.

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