Surrogate Motherhood is when one women carries to term
the fertilized egg of another woman. This procedure is chosen
by married couples who can not conceive a child in the natural
way. In some occasions the mother may be able to produce an
egg, but has no womb or some other physical problem which
prevents her from carrying a child. Whether or not the husband
can produce a large amount of sperm is not a problem. Once the
egg and sperm are combined in a petri dish fertilization is very
likely to occur. The couple will then choose a surrogate
mother and make an agreement in which she will carry the baby
and release it to the genetic parents after the birth. There are
four different kinds of surrogacy arrangements. Total
Surrogacy is when the woman bears a child that has been formed
from the gametes of another woman and man and implanted in her
body.
Partial Surrogacy occurs when the birth mother
contributes the ovum and the sperm is introduced by artificial
insemination. She is a biological parent of the child. Commercial
Surrogacy means a business-like transaction where a fee is
charged for the incubation period. Lastly, there is a
Non-Commercial Surrogacy in which there is no formal contract
or any payment to the birth mother. It is usually an arrangement
between close friends or family members.(1-10)
There is no federal policy on the issue of surrogacy, all
fifty states have been left to decide theses issues themselves
and create their own policies. The majority of the states have
not yet legislated on this subject. Those states that have taken
positions differ greatly from one another, such as California
and Virginia, who have taken opposing viewpoints California is
the state that is the most sympathetic to the genetic parents.
Under California law surrogacy agreements are enforceable
and the genetic parents are given all legal parental rights to
the child. In Virginia, all legal parental rights to the child are
given to the surrogate mother. Who is the legal mother? In the
case of Johnson v. Calvert, in Virginia, the surrogate mother
was found to be the legal mother of the child. If this case
would have taken place in California, the biological mother is
the legal mother. So it really depends on which state the act of
surrogacy is taking place to name the legal mother. Are
contracts for surrogate motherhood enforceable under
American law?
Again, it depends on which state the act is taking
place. In California, surrogacy agreements are against the
surrogate mother. in Virginia, surrogacy agreements are void
and unenforceable. Thus, so far, among those states that have
legislated on the issue, many are legislating that these
agreements are void and unenforceable in order to try to deter
couples and surrogates from entering into agreements.(1-2)
Surrogate arrangements are made usually through close
friends or relatives of the childless couple. However, the
practice of commercial surrogacy has increased greatly during
the last decade. Many major cities have surrogate agencies that
maintain lists of potential surrogate mothers and help match
these with couples wanting to have a baby. These agencies are
often run by doctors or lawyers and may be found through
listings in telephone books. Commercial surrogate agencies
typically charge a fee of $10,000 or more to make the
arrangements, which is in addition to the surrogate mothers
expenses and fees.
These agencies are not legal in all states.
Most commercial surrogacies are handled through a contract
between the prospective parents and the surrogate mother. The
contracting couple agrees to pay the surrogate mothers
expenses during the pregnancy and delivery plus a fee for the
surrogatess services. The fee can vary between $10,000 and
$100,000 per pregnancy. The surrogate mother also agrees to
terminate her parental rights to the infant and turn it over to
the contracting couple after birth. A vast majority of the
surrogacy arrangements proceed without difficulty,
occasionally problems arise concerning custody of the child.
Since the concept of commercial surrogacy is relatively new,
there are few laws and legal precedents concerning these
contracts. In some states these contracts are illegal and are
considered null and unenforceable by the courts. (1-5)
Many considerations are to be made in selecting a
surrogate mother. For instance: is the potential surrogate
healthy and free from disease, is the surrogates genetic
material compatible with the contracting couples expectations,
is the surrogate candidate emotionally and psychologically
stable, does the potential surrogate live in a stable situation
which positively influence the pregnancy, and does the potential
surrogate have a family history of genetic defects that might
adversely affect the baby?
In assessing these issues, the
prospective parents might benefit from the services of a
professional family counselor. Additionally, the assessment of
the surrogate mothers qualifications can be aided by both
expert medical and psychological evaluations. Another major
question that arises is whether or not the commissioning
parents have the right to tell surrogate mother how to live?
Can the couple ban smoking, control alcohol, and other
substance intake? These issues need to be taken into mind before
choosing a surrogate mother and needs to be stated in the
contract.(1-2)
In conclusion, surrogate motherhood raises many legal
and ethical dilemmas, especially that of who the legal mother is.
Surrogate motherhood dramatically alters society norms and
creates many different legal viewpoints. But no matter which
legal body is dealing with this issue, they all face the same moral
and ethical dilemma: that a child born out of surrogacy has a
bond with both the genetic mother and the surrogate mother.
The bond between these two women and this child is permanent
and cannot be changed by law. The law can only govern which
woman has the legal right to raise the child.
Works Cited
Centre Points, Volume 1, No. 1, Article #2, Surrogate
Motherhood and its Human Costs, Suzanne Rozell Scorsone,
Ph.D. ;1-2
Johnson v. Calvert, 5 Cal. 4th 84, 851p.2d 776, 19 Cal.
Rptr. 2d 494 (1993); 1-10
