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Uncovering the Rationale for Requiring Infertility in Surrogacy Arrangements

Published online by Cambridge University Press:  06 January 2021


Anyone who reads numerous statutes is frequently left scratching his or her head: is this provision a deliberate, rational requirement or filler thrown in for no apparent reason? One puzzling requirement peppering state surrogacy statutes is the limitation of surrogate parenting arrangements to couples in which the intended mother is infertile, unable to bear a child or unable to carry the child without unreasonable risk to the mother or child. The legislative history of these statutes offers no explanation for this emphasis on maternal infertility.

The only attempted justification for such a requirement comes from commentators who argue that it bars women who want to avoid the nuisance of being pregnant and giving birth from using a surrogate.

Research Article
Copyright © American Society of Law, Medicine and Ethics and Boston University 2003

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1 See infra Part II.A. Infertility affects roughly ten percent of all couples, making it “one of the more common problems for which people seek medical aid.” LEON SPEROFF ET AL., CLINICAL GYNECOLOGIC ENDOCRINOLOGY & INFERTILITY 311 (2d ed. 1983). A far greater number of couples, however, experience problems conceiving. See, e.g., VICTOR GROZA & KAREN F. ROSENBERG, CLINICAL AND PRACTICE ISSUES IN ADOPTION 23 (1998) (estimating that 1 in 6 couples experience fertility problems, a number that “rises to 1 out of every 4 among women 40 to 44 years of age”). Groza and Rosenberg note that this rate of infertility “represents a 14.4% increase since 1965.” Id. Others believe that the overall rate of infertility has not increased. Instead, “[i]t is the treatment of infertility that has increased in recent years … .” ELIZABETH BARTHOLET, FAMILY BONDS: ADOPTION AND THE POLITICS OF PARENTING 24 (1993) (observing that the use of infertility services “increased almost threefold from the 1960s to the 1980s, while infertility rates remained stable”).

2 See infra Part II.B.

3 Manus, Murray L., The Proposed Model Surrogate Parenthood Act: A Legislative Response to the Challenges of Reproductive Technology, 29 U. MICH. J.L. REFORM 671, 735 (1996)Google Scholar (noting this rationale, but questioning the constitutionality of a ban on the use of surrogacy for this reason).

4 Brandel, Abby, Legislating Surrogacy: A Partial Answer to Feminist Critique, 54 MD. L. REV. 488, 516 (1995)Google Scholar (citation omitted).

5 Flaherty, James T., Enforcement of Surrogate Mother Contracts: Case Law, The Uniform Acts, and State and Federal Legislation, 36 CLEV. ST. L. REV. 223, 241 (1988)Google Scholar.

6 See infra Part III.

7 See infra Part IV.

8 See Everything Surrogacy website, at (last visited Feb. 27, 2003).

9 Id.

10 See MAYO CLINIC, GESTATIONAL CARRIER PROGRAM (SURROGACY), at (last visited Feb. 27, 2003). Some clinics do not perform traditional surrogacy procedures. Id. (discussing the Mayo Clinic in Rochester, Minn.).

11 See, e.g., FL. STAT. ANN. § 742.15 (authorizing gestational agreements).

12 For a state-by-state summary of the status of gestational agreements in the United States, see the Table of Gestational Agreement Laws, UNIFORM PARENTAGE ACT, app. Art. 8, complied by Jenny Womack, at (National Conference of Commissioners on Uniform State Laws, 2000) (last visited Feb. 18, 2003).

13 See FLA. STAT. ANN. § 742.15 (West 2002) (requiring that the intended mother cannot physically gestate a pregnancy to term or that, by doing so, the gestation will cause a risk to herself or the unborn child); N.H. REV. STAT. ANN. § 168-B:17 (West 2002) (requiring the intended mother to be unable to bear a child without risk to her health or the child's heath); VA. CODE ANN. § 20-160(8) (Lexis-Nexis 2000) (requiring that the intended mother be infertile or unable to bear children without substantial health risks to either herself or the unborn child).

14 See VA. CODE ANN. § 20-162 (Lexis-Nexis 2000); see also FLA. STAT. ANN. §742.15(1) (West 2000).

15 See N.H. REV. STAT. ANN. § 168-B:16(I) (West 2002).

16 See N.H. REV. STAT. ANN. § 168-B:30 (I) (West 2002). Whether statutes requiring enforcement of the required contracts would be constitutional is unclear. Compare Coleman, Carl H., Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 MINN. L. REV. 55, 126 (1999)Google Scholar (discussing procreative liberty), with Robertson, John A., Prior Agreements for Disposition of Frozen Embryos, 51 OHIO ST. L.J. 407, 415 (1990)Google Scholar (arguing that freedom of contract enhances liberty).

17 See UNIFORM PARENTAGE ACT, supra note 12, § 803(b)(2); see also UNIFORM STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT §6(b)(2)(1988) (Nat’l Conference of Comm’rs on Unif. State Laws, Alternative A 1988, § 6(b)(2)), available at (noting that a court shall enter an order approving the surrogacy agreement if “the intended mother is unable to bear a child or is unable to do so without unreasonable risk to an unborn child or to the physical or mental health of the intended mother or child,” and that this finding is supported by medical evidence).

18 See, e.g., ONTARIO LAW REFORM COMMISSION, 2 REPORT ON HUMAN ARTIFICIAL REPRODUCTION AND RELATED MATTERS 236-237 (1985) (requiring judicial approval of a surrogacy agreement which hinges in part on a court finding medical indications of health risks or infertility); Interview with The Honorable B.J. van Heerden, Cape High Court, Cape Town, South Africa (Aug. 10, 2002) (discussing South Africa) (on file with author).

19 New Hampshire's act governing surrogate motherhood explains only that it “ensures that surrogacy arrangements are only utilized by married couples and only when necessary.” Act of Apr. 10, 1990, ch. 87 § 1(II), 1990 N.H. LAWS 117, 117.


21 ONTARIO LAW REFORM COMMISSION, supra note 18, at 237.

22 Gill argues that because many agencies had significant discretion to pick and choose among prospective adoptive parents, their standards for adoption “created a public law of good parenting and model families.” Brian Gill, Dissertation: The Jurisprudence of Good Parenting: The Selection of Adoptive Parents, 1894-1964, at 6, 31 (1997) (unpublished Ph.D. dissertation, University of California, Berkeley) (on file with author).

Adoption practices are not a monolithic set of rules; they reflect the individual policies of hundreds of public and private adoption agencies. See, e.g., ELAINE L. WALKER, LOVING JOURNEYS GUIDE TO ADOPTION 247-69 (1992) (listing factors influencing placement for 370 American infant adoption programs). Private agencies place roughly half of the healthy infants adopted in the United States. ELLEN PAUL, ADOPTION CHOICES: A GUIDEBOOK TO NATIONAL AND INTERNATIONAL ADOPTION RESOURCES 298 (1991).

23 See, e.g., WILLIAM FEIGELMAN & ARNOLD R. SILVERMAN, CHOSEN CHILDREN: NEW PATTERNS OF ADOPTIVE RELATIONSHIPS 13 (1983) (“Many child welfare agencies used to require couples to present proof of infertility in order to qualify for adoptive parenthood.”); THE NAT’L COMM. FOR ADOPTION, 1989 ADOPTION FACTBOOK, UNITED STATES DATA, ISSUES, REGULATIONS AND RESOURCES 161 (1989) (“Most adoption agencies prefer to serve couples who have an infertility problem.”).

In considering applications for adoption, agencies—then and now—also consider other factors, such as where the couple lives, the couples’ age and whether they have children of their own or other adoptive children. Michaels, Ruth, Casework Considerations in Rejecting the Adoption Application, 28 J. SOC. CASEWORK 370 (1947)Google Scholar; CHILD WELFARE LEAGUE OF AMERICA, STANDARDS FOR ADOPTION SERVICE 60 (rev’d ed. 1978) (discussing adoption criteria).

24 See, e.g., Michaels, supra note 23 (noting that in 1947, the Free Synagogue Child Adoption Committee in New York disqualified “couples with children of their own” from adopting); ALEXINA MARY MCWHINNIE, ADOPTED CHILDREN: HOW THEY GROW UP—A STUDY OF THEIR ADJUSTMENT AS ADULTS 215 (1967) (discussing the practice of some adoption agencies not to “place adopted children into homes where there are already children born to the parents or where there may be children born to them later”).

25 See, e.g., Stolley, Kathy S., Statistics on Adoption in the United States, 3 THE FUTURE OF CHILDREN, ADOPTION 26 (1993)Google Scholar (observing that “[a]doption is most important for infertile couples seeking children and children in need of parents”); PAUL, supra note 22, at 77 (noting that “[t]he shortage of adoptive babies in Connecticut has become so severe that one adoption agency in the southeastern part of the state has restricted its clientele to childless couples”). “The number of women seeking to adopt surpasses the annual number of unrelated adoptions by a ratio of 3.3 to 1.” Stolley, supra note 25, at 37.

The shortage of adoptable infants can be traced to the increase in “older couples with fertility problems,” as well as to “legal abortion and a society that looks more favorably on single mothers.” Susan Gill Vardon, Diverse Families Reflect Changing Face of Adoption, THE FORT WORTH STARTELEGRAM, May 14, 2000, at 27. Couples seeking to adopt a healthy infant face waiting periods up to 7 years. See, e.g., PAUL, supra note 22; Tara Mack, The Export of American Babies, LADIES HOME JOURNAL, Oct. 1, 2000, at 206. But see Stolley, supra note 25, at 37 (finding waiting periods of roughly “two or more years to adopt healthy, white infants”). It is worth noting that the motivation to adopt has changed over time, from the desire in the early 1900s to have “extra help on the farm” to the desire for a baby to complete the childless couples’ family. See Gill, supra note 22, at 206 (explaining the emphasis on infertility and dating the shift to the 1920s).

26 See MCWHINNIE, supra note 24, at 215.

27 See MARGARET KORNITZER, CHILD ADOPTION IN THE MODERN WORLD 18 (1952) (observing that adoption workers in the 1950s preferred infertile couples for this reason).

28 See JUDITH AREEN, FAMILY LAW: CASES AND MATERIALS 1434 (4th ed. 1999) (explaining the New York requirement that adoption applicants submit medical evidence about infertility or sterility as part of the adoption process). Older adoption treatises also echo this concern. See, e.g., Clothier, Florence, Placing the Child for Adoption, 26 MENTAL HYGIENE 257, 267 (1942)Google Scholar (observing that when a biological child is born into a family with an adoptive child, “there are sometimes tragic results for the adopted child”); see also Part IV.B infra.

29 Constance|Rathbun, The Adoptive Foster Parent, 23 CHILD WELFARE LEAGUE OF AMERICA BULLETIN 67 (Nov. 1944)Google Scholar (cited in Gill, supra note 22, at 210).

30 See, e.g., Sachdev, Paul, Selection of Adoptive Parents, in ADOPTION: CURRENT ISSUES AND TRENDS 73 (1984)Google Scholar (asserting that “[a]n infertility report should not be a requirement for couples who want to adopt a child,” although a report can be helpful in understanding why the couple is infertile); see also CHILD WELFARE LEAGUE OF AMERICA, STANDARDS FOR ADOPTION SERVICE 60 (rev’d ed. 1978) (discussing adoption criteria).

Some agencies still consider infertility in evaluating prospective adoptive parents. See WALKER, supra note 22, at 247-69 (noting that of 370 private American infant adoption programs reviewed, 148, or 40%, require that the prospective adoptive parents be infertile).

31 George, Ellen S. & Snyder, Stephen M., Comment: A Reconsideration of the Religious Element in Adoption, 56 CORNELL L. REV. 780, 782 (1971)Google Scholar.

32 CHILD WELFARE LEAGUE OF AMERICA, supra note 30, at 60; WALKER, supra note 22, at 1 (listing eight “basic requirements for adoptive parents,” none of which reference infertility).

33 See, e.g., BARTHOLET, supra note 1, at 31 (“The accepted ethic among adoption workers is that prospective parents must resolve feelings about infertility before they pursue adoption.”); Groth, Mardell et al., An Agency Moves Toward Open Adoption of Infants, 66 J. CHILD. WELFARE LEAGUE 253 (1987)Google Scholar (arguing that infertile couples “must begin the adoption process by facing their own infertility and dealing with their grief over the loss of an infant they have dreamed about but who will never exist”); BENSON JAFFEE & DAVID FANSHEL, HOW THEY FARED IN ADOPTION: A FOLLOW-UP STUDY 17 (1970) (noting a consensus among child welfare workers that the “degree to which an individual has successfully assuaged the pain and assault upon his ego inflicted by his being infertile” is critical to evaluating a “couple's readiness to take on a child who is biologically unrelated to them”); Sachdev, supra note 30, at 73.

34 PAUL, supra note 22, at 65.

35 Some see even the relaxed infertility requirements as “bias against the infertile.” REPRODUCTION, ETHICS AND THE LAW: FEMINIST PERSPECTIVES 95 (Joan C. Callahan ed., 1995). As Callahan points out, “the fertile are not questioned about why they want to have children, or why they don't adopt a child. The desire to have children is rarely challenged unless the individual is having difficulty reproducing.” Id. These views come from a society that assumes “real families should be connected by blood.” Wegar, Katarina, Adoption, Family Ideology, and Social Stigma: Bias in Community Attitudes, Adoption Research and Practice, 49 FAM. RELATIONS 363, 368 (2000)Google Scholar (arguing that “a biological tie is assumed to be important for bonding and love” and, if there is not a biological link, the intended parents are not “real parents”).

36 See Part II.A supra (noting the lack of legislative history for the infertility requirement).

37 See Hansen, Michele et al., The Risk of Major Birth Defects After Intracytoplasmic Sperm Injection and In Vitro Fertilization, 346 NEW ENG. J. MED. 725 (2002)Google Scholar; see also te Velde, E.R. et al., Concerns About Assisted Reproduction, 351 LANCET 1524 (1998)Google Scholar. The fact that AR techniques were introduced without formal evaluation is not unusual. Unlike medical devices and drugs, medical procedures are not heavily regulated. LARS NOAH & BARBARA NOAH, LAW, MEDICINE, AND MEDICAL TECHNOLOGY: CASES AND MATERIALS 6-7, 62 (2002) (discussing the U.S. Food and Drug Administration's statutory authority and its “longstanding policy against interfering with the practice of medicine”).

38 While IVF involves collecting a woman's eggs from her ovaries and fertilizing them with sperm in a laboratory, ICSI involves the injection of a single spermatozoon into an oocyte. Cummins, J.M. & Jequier, Anne M., Concerns and Recommendations for Intracytoplasmic Sperm Injection (ICSI) Treatment, 10 HUMAN REPRODUCTION 138 (Oxford Univ. Press, Supp. 1995)Google Scholar; see also te Velde, supra note 37.

39 Hansen et al., supra note 37, at 725 (reviewing data from birth registries in Western Australia from 1993 and 1997, which encompassed reports on 301 ICSI infants, 837 IVF children and 4,000 naturally conceived infants).

40 Id.

41 Id. at 729, Table 4.

42 Id. at 727.

43 Id. at 728, Table 3.

44 Id. at 725.

45 Id. at 727-28 & Table 3 (reporting an odds ratio of 2.6 for IVF children and 2.2 for ICSI children).

46 Id. (reporting for singletons, an odds ratio of 2.4 for both IVF children and ICSI children; for singletons born at term, the authors found an odds ratio of 2.2 for IVF children and 2.3 for ICSI children).

47 Id. at 728.

48 Id. (reporting odds ratios for the IVF and ICSI children as 2.2 and 2.5, respectively).

49 Id. (finding that 2.0% of the ICSI children, 1.6% of the IVF children and 0.5% of those naturally conceived had multiple major birth defects, making the ICSI children four times more likely to have major defects, and the IVF children more than three times more likely).

50 Id. at 730.

51 Bergh, T. et al., Deliveries and Children Born After In-Vitro Fertilization in Sweden, 1982-95: A Retrospective Cohort Study, 354 LANCET 1579 (1999)Google Scholar.

52 Id. (reporting a relative risk of 1.39).

Similarly, in a study of 1139 infants born after ICSI in Sweden, Wennerholm and colleagues found an odds ratio of 1.75 of having a major or minor birth defect when stratifying for delivery hospital, year of the birth and maternal age. U.B. Wennerholm et al., Incidence of Congenital Malformations in Children Born After ICSCI, 15 HUMAN REPRODUCTION 944 (2000). But, this rate sank to 1.19 when the data was stratified for singletons/twins. The authors concluded that “the increased rate of congenital malformation is thus mainly the result of a high rate of multiple births.” Id. at 944; see also Tarlatzis, B.C. & Bili, H., Intracytoplasmic Sperm Injection: Survey of World Results, 900 ANN. NY ACAD. SCI. 336 (2000)Google Scholar (concluding that the effect on children of ICSI was not different than that of IVF and was “only affected by multiplicity,” but acknowledging that aberrations of the sex chromosomes were “slightly elevated”).

53 Bergh et al., supra note 51, at 1579.

54 Hansen et al., supra note 37, at 730.

55 Id. at 729.

56 Id.

57 Stromberg, B. et al., Neurological Sequelae in Children Born After In-Vitro Fertilization: A Population-Based Study, 329 LANCET 461, 462-63 (2002)Google Scholar.

58 Id. at 463. Assuming the increased risk is a real one—rather than an artifact—scientists believe the relevant question is “whether the IVF process is deficient in some way for the development of the fetal motor system or that infertility itself is an independent factor.” Healy, David L. & Saunders, Kerryn, Follow-up of Children Born After In-Vitro Fertilization, 329 LANCET 459 (2002)Google Scholar.

59 DeBaun, Michael R. et al., Association of In Vitro Fertilization with Beckwith-Wiedmann Syndrome and Epigenetic Alteration of LIT1 and H19, 72 AM. J. HUM. GENETICS 156 (2003)Google Scholar.

60 Id. (giving Wilm's tumor, neuroblastoma and hepatoblastoma as examples).

61 Profile: Frequency of Disease from ART Pregnancies (Nat’l Pub. Radio transcript, Nov. 15, 2002) (on file with author).

62 Id.

63 See, e.g., Wennerholm et al., supra note 52 (finding a greater instance of a penile malformation, hyposadias, among ICSI children than among IVF kids); see also Steirteghem, Andre Van, Outcome of Assisted Reproductive Technology, 338 NEW ENG. J. MED. 194 (1998)Google Scholar (reporting the results for more than 1000 children conceived with ICSI at a single center, and finding a “slight but significant increase in the rate of spontaneous sex-chromosome anomalies” over the general population, but finding rates of congenital malformations similar to those of natural conception).

Others studies find no excess risk with ICSI. See, e.g., Sutcliffe, A.G. et al., Outcome in the Second Year of Life After In-vitro Fertilisation by Intracytoplasmic Sperm Injection: A U.K. Case-Control Study, 357 LANCET 2080 (2001)Google Scholar (reporting in a case-control study of 228 singleton ICSI children and 221 normally conceived children, no difference in neurodevelopment, mental development, perinatal outcome, birth-weight or congenital abnormalities between children conceived through ICSI and children conceived normally). Cf. Hawkins, M.M. et al., Male Infertility and Increased Risk of Diseases in Future Generations, 354 LANCET 1906 (1999)Google Scholar (discussing a study of 423 offspring conceived through ICSI that has been interpreted two different ways: the investigators concluded that there was no evidence of high risk of birth defects, while the independent reviewers concluded that there was a two-fold rise in risk). See generally European Soc’y for Human Reproduction & Embryology, at, for abstracts of studies showing that “ICSI children have normal development by the time they start school.” Hawkins’ study has not yet been published or, presumably, subjected to blind peer review.

64 Cummins & Jequier, supra note 38, at 138; see also te Velde et al., supra note 37, at 1524.

65 Cummins & Jequier, supra note 38, at 138. It is worth noting that the same charges were leveled against IVF twenty-five years ago, before it became an everyday occurrence. See Daar, Judith F., The Future of Human Cloning: Prescient Lessons from Medical Ethics Past, 8 S. CAL. INTERDISC. L.J. 167, 175-76 (1998)Google Scholar (citing Kass, Leon R., Babies by Means of In Vitro Fertilization: Unethical Experiments on the Unborn?, 285 NEW ENG. J. MED. 1174 (1971)Google Scholar).

66 See infra Table 2.

67 Id.

68 Bergh et al., supra note 51, at 1582.

69 Id.

70 Id. Bonduelle and colleagues also found similar rates of malformations among IVF and ICSI children. Bonduelle, Maryse et al., Neonatal Data on a Cohort of 2889 Infants Born After ICSI (1991-1999) and of 2995 Infants Born After IVF (1983-1999), 17 HUMAN REPROD. 671 (2002)Google Scholar (finding comparable rates of major malformations among IVF and ICSI children in Belgium).

For a review of malformations among ICSI children, see Bonduelle, Maryse et al., Seven Years of Iintracytoplasmic Sperm Injection and Follow-up of 1987 Subsequent Children, 14 HUMAN REPRODUCTION 243 (Supp. 1999)Google Scholar.

71 See Case, Anne et al., How Hungry is the Selfish Gene?, 110 ECON. J. 781, 782 (2000)Google Scholar [hereinafter Selfish Gene]; Case, Anne et al., Educational Attainment of Siblings in Stepfamilies, 22 EVOLUTION & HUMAN BEHAV. 269 (2001)Google Scholar [hereinafter Educational Attainment]; Case, Anne & Paxson, Christina, Mothers and Others: Who Invests in Children's Health?, 20 J. HEALTH ECON. 301 (2001)Google Scholar.

72 Wilson, Robin Fretwell, A Review of From Partners to Parents: The Second Revolution in Family Law by June Carbone, 35 FAM. L.Q. 833, 839840 (2002)Google Scholar (book review).

73 Selfish Gene, supra note 71, at 782; Educational Attainment, supra note 71, at 269.

74 Case & Paxson, supra note 71, at 301.

75 Id. at Table 3.

76 Id. at 305.

77 Id. at 307.

78 JOAN HEIFITZ HOLLINGER ET AL., ADOPTION LAW AND PRACTICE § 1.05[2] (Joan Hollinger ed., 2002) (pointing out that a majority of women who adopt unrelated children have a college degree); ORAL CANCER FOUNDATION, DEMOGRAPHICS OF TOBACCO USE, at (last visited Feb. 27, 2003) (noting that adults with sixteen or more years of education had the lowest smoking prevalence, while adults with nine to eleven years of education had a higher smoking prevalence).

79 See Case & Paxson, supra note 71, at Table 3.

The evidence of diminished investment in step-children is legion. See, e.g., Zvoch, Keith, Family Type and Investment in Education: A Comparison of Genetic and Stepparent Families, 20 EVOLUTION & HUM. BEHAV. 453, 461 (1999)Google Scholar (finding that step-parents “start savings accounts approximately 1 year later, save approximately $1600 less for [college], and expect to spend approximately $1400 less to support the first year of postsecondary schooling, relative to children with two genetic parents”); see also Daly, Martin & Wilson, Margo, An Assessment of Some Proposed Exceptions to the Phenomenon of Nepotistic Discrimination Against Stepchildren, 38 ANN. ZOOL. FENNICI 287, 287 (2001)Google Scholar (reviewing studies confirming that “stepchildren are more generally disadvantaged with respect to positive investments”).

A growing body of research also documents the substantially elevated risk to non-biological children of experiencing vicious physical abuse and even homicide during their childhood. For instance, Robert Whelan found that British children living with their mother and a cohabitant are thirty-three times more likely to be physically abused and seventy-three times more likely to be killed than children living in an intact family. ROBERT WHELAN, BROKEN HOMES AND BATTERED CHILDREN: A STUDY OF THE RELATIONSHIP BETWEEN CHILD ABUSE AND FAMILY TYPE, Tables 12 & 14 (1994) (reporting a risk of physical abuse for children living with two natural married parents of 0.23, compared to a risk of 7.65 for children living with their natural mother and a cohabitant; and reporting a risk of fatal abuse for children living with both natural, married parents of 0.31, compared to a risk of fatal abuse of 22.90 for children living with their natural mother and a cohabitant); see also ANIA WILCZYNSKI, CHILD HOMICIDE 72-73, 77 (1997) (finding that the “proportion of male parent-substitutes and male cohabitees” in an English sample of child-killing “were nine and 50 times their respective rates in national survey.”); Jones, Owen D., Evolutionary Analysis In Law: An Introduction and Application to Child Abuse, 75 N.C. L. REV. 1117, 1208 (1997)Google Scholar (observing that a child in a step-parent household is 120 times more likely to be bludgeoned to death than a child living with his genetic father in an intact household).

The depredations visited upon non-biological children do not stop with punishing physical abuse; they also extend to sexual exploitation. In a massive longitudinal study spanning two decades, for instance, New Zealand researchers found that children reporting childhood sexual abuse were more likely to live with a step-parent before the age of fifteen. Fergusson, D. M. et al., Childhood Sexual Abuse and Psychiatric Disorder in Young Adulthood: I. Prevalence of Sexual Abuse and Factors Associated with Sexual Abuse, 35 J. AM. ACAD. CHILD & ADOL. PSYCH. 1355, 1359, Table 2 (1996)Google Scholar. Of those children experiencing intercourse, nearly half (45.5%) were raised in a step-parent household. See id. at 1358, Table 1 & 1359, Table 2; see also Wilson, Robin Fretwell, Children at Risk: The Sexual Exploitation of Female Children After Divorce, 86 CORNELL L. REV. 251 (2001)Google Scholar (reviewing overwhelming empirical evidence showing a connection between living with a nonbiological parent and sexual abuse of girls by a parent, parent's partner or someone outside the household); Wilson, Robin Fretwell, Fractured Families, Fragile Children: The Sexual Vulnerability of Girls in the Aftermath of Divorce, 14 CHILD & FAM. L.Q. 1 (2002)Google Scholar (reviewing studies in Finland, South Africa, Costa Rica, England, Scotland, Wales, Australia and Taiwan showing significantly increased risk of sexual abuse for female children living with non-biological parents).

80 See Case & Paxson, supra note 71, at Table 3.

81 See Educational Attainment, supra note 71, at 271.

82 Id. at 278.

83 Id. at 275.

84 See Selfish Gene, supra note 71, at 783.

85 Id. at 782 (reporting a 5% decrease in the United States and 2% decrease in South Africa).

86 Id. at 798-99.

87 Id.

88 See Educational Attainment, supra note 71, at 275.

89 Id.

90 Id.

91 Id.

92 Id.

93 Koretz, Gene, Are Stepparents Just as Caring: Blood Mothers Spend More on Food, BUS. WEEK, Nov. 29, 1999Google Scholar, available at 1999 WL 27296328.

94 See supra Part IV.A.

95 Case & Paxson, supra note 71, at 309 (“Considering that, in addition, adoptive parents have been screened as ‘good parents’ prior to adopting, it is hardly surprising that the levels of investments among these families is high.”).

96 Educational Attainment, supra note 71, at 275.

97 See HOLLINGER ET AL., supra note 78, § 3.01[3] (noting the variety of ways in which children become available for adoption, including the involuntary termination of parental rights).

98 An unpublished study presented to the 2002 Annual Conference of the European Society for Human Reproduction and Embryology by researchers at the City University of London may shed some light on the investment by surrogate parents in the resulting child. See CNN.COM, SURROGATES MAKE BETTER PARENTS, at (last visited Feb. 27, 2003). There, in a comparison of parenting skills by (a) surrogate parents, (b) parents who conceived a child through IVF with a donated egg but without a surrogate, and (c) parents who naturally conceived a child, researchers found a greater degree of warmth and emotional involvement among the intended parents. In their view, this may reflect “some tendency towards over-investment in the child.” Id. While reassuring, these findings about high levels of investment do not consider differences, if any, in treatment of naturally conceived and surrogate children within the same family.

99 Daly & Wilson, supra note 79, at 294 (arguing that step-parents invest in their predecessors’ young as a form of “mating effort”).

100 Wilson, Margo & Daly, Martin, Risk of Maltreatment of Children Living with Stepparents, in CHILD ABUSE AND NEGLECT: BIOSOCIAL DIMENSIONS 215, 218 (Gelles, Richard J. & Lancaster, Jane B. eds., 1987)Google Scholar (noting that step-parents and adoptive parents may differ in “the initial strength of the substitute parent's wish to simulate a genuine parental love” and urging that adoptive parents— unlike step-parents—“are strongly motivated to simulate a natural family experience and … have been carefully screened by adoption agencies” and concluding that “for all these reasons, we would not anticipate … a major risk of child maltreatments within adoptions”).

101 Kraus, Jaroslav, Family Structure as a Factor in the Adjustment of Adopted Children, 8 BRIT. J. SOC. WORK 327 (1978)Google Scholar.


103 See Kraus, supra note 101, at 332.

104 Id. at 333.

105 Id. at 328 (observing that a concern about short-changing nongenetic children “seems to be grounded in the commonsense proposition that the adopted child's status with couples who adopt to increase their family could be very different from its status with couples who increase their family naturally after adoption, and is consistent with evidence indicating a greater success of adoptions for completion than creation of a family, and different feelings of mothers towards natural and adopted children.”); see also JAFFEE & FANSHEL, supra note 33, at 17 (speculating that “unconscious resentment” by infertile parents “may well influence the way they will relate to” their adopted child); Kraus, Jaroslav, Expectancy of Fertility After Adoption, 29 AUSTL. SOC. WORK 19 (1976)Google Scholar (theorizing that “the adopted child's status with couples who adopt to increase their family could be very different from its status with couples who increase their family naturally after adoption”).

Significantly, adoptive parents themselves give mixed accounts of whether adoptive children receive differential treatment. Most adoptive parents, when asked, say that their feelings toward the adoptive children were the same as toward their own, and that

rearing adopted and natural children in the same home presented no problems. A few, however, thought it did pose problems, although some of the mothers said that the advantage lay with the adopted rather than with the natural children.



107 Ternay, M.R. et al., Perceived Child-Parent Relationships and Child Adjustment in Families With Both Adopted and Natural Children, 146 J. GENETIC PSYCHOL. 261, 263 (1985)Google Scholar.

Brodzinsky also suggests that any difference in adjustment in Mixed Adoptive Families could also stem from the adoptee's knowledge of their status as an adopted child. “Having siblings who are biologically related to the parents may accentuate the uniqueness of the adopted child's family status, thereby facilitating greater curiosity, questioning, and ultimately, greater understanding of adoption.” BRODZINSKY ET AL., supra note 106, at 219.

108 Kraus, supra note 101, at 333-34.

109 See HOOPES, supra note 102, at 9.

110 Id.

111 Id.

112 Others have likewise found that adoptees in Mixed Adopted Families adjust differently. See WITMER ET AL., supra note 105, at 314 (citing studies that suggest the “most favorable situation for an adopted child is probably that in which there are no natural children in the family when he enters it but to which either natural or adopted children come later”). But see Ternay et al., supra note 107, at 267 (finding in a comparison of adoptees in (a) Mixed Adoptive Families and (b) families containing only adoptees that the former had higher personal adjustment scores).

Juxtaposed with the foregoing studies are studies showing that adoptees who join families which already contain children have an easier adjustment. For example, Jaffee and Fanshel found that “[c]hildren who entered families containing one or more other children tended to fare better than did adoptees placed with childless couples” along a range of indices, including better school performance, fewer personal and social adjustment problems, and a less turbulent parent/child relationship. JAFFEE & FANSHEL, supra note 33, at 254-55. They did not, however, distinguish between households containing only adoptees and Mixed Adoptive Families.

113 See, e.g., Brodzinsky, D.M. & Brodzinsky, A.B., The Impact of Family Structure on the Adjustment of Adopted Children, 71 CHILD WELFARE 69, 74 (1992)Google Scholar.

114 Id. Brodzinsky goes on to say,

Thus, the data from the present study, taken as a whole, suggest that the adoption order and the presence of biological children in the adoptive family have relatively little influence on the adjustment of adopted children and their parents, at least in situations involving early adoption placement and in families composed of parents and children who are similar in racial/ethnic background.


115 See supra note 98 (discussing the limited studies of surrogate parents).

116 See SPEROFF, supra note 1, at 467.

117 See U.S. CONGRESS, OFFICE OF TECH. ASSESSMENT, INFERTILITY: MEDICAL AND SOCIAL CHOICES 387 (1988) (defining secondary infertility as difficulty conceiving after having had a prior pregnancy).

118 See Tischler, Rhonda, Note, Infertility: A Forgotten Disability, 41 WAYNE L. REV. 249 (1994)Google Scholar.

119 See SPEROFF, supra note 1, at 487 (noting that the decline in fertility with age becomes “precipitous” after a woman enters her 40s).

120 See Ross, Emma, Two-Year Wait Advised Before Fertility Clinic, THE STATE, July 4, 2002Google Scholar, at A9 (citing forthcoming study by David B. Dunston).

121 GROZA & ROSENBERG, supra note 1, at 24. Studies also indicate the presence of a child in the home could improve a woman's chance of conceiving. One study indicated that during a period of seven years after an adoption, a child was born to 13.8% of couples. Other studies indicate these findings are not conclusive. See generally id.

122 American Soc’y of Reproductive Medicine, In Case Your Patients Ask About It—Research Reported at ESHRE and Reported in the News, at (last visited Dec. 10, 2002) (reviewing data on 782 European couples).

123 The twin perils of major birth defects and diminished parental investment pose very different risks to the resulting children. Despite these different risks, a maternal infertility requirement applies to techniques that sometimes pose only one risk or another. Table 1 demonstrates this more clearly by outlining which surrogacy methods involve IVF and which result in nongenetic children of one or both intended parents.

The risk of birth defects to the resulting child hinges on the precise means used to create the fertilized egg and impregnate the surrogate. Artificial insemination of the surrogate with the intended father's sperm (AID) does not expose the resulting child to increased risk of major birth defects. See Hill, John Lawrence, What Does It Mean To Be a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. REV. 353, 355 (1991)Google Scholar. Yet, this method may have been selected precisely because the intended mother is infertile or otherwise unable to safely carry a child to term. Contrast AID with IVF. IVF may be used in surrogacy arrangements in three situations, as shown in Table 1. First, the intended parents want to produce a child that is the genetic child of both, but the intended mother is unable to carry a child to term. In this instance, the genetic material of both can be combined using IVF and then transferred to the surrogate. Id. Second, when the intended father's sperm are insufficient for conception, thus requiring the use of donor sperm, and the intended mother can produce good eggs but is unable to carry a child to term, the sperm and egg can be fertilized through IVF and transferred to the surrogate. Id. Finally, as in Buzzanca v. Buzzanca, 72 Cal. Rptr. 2d 280 (App. 1998), the fertilized egg may derive from combining a donor sperm and donor egg (from someone other than the surrogate mother), and then be implanted in the surrogate. See Hill, supra note 123, at 355. In each instance, the technique used to accomplish the surrogacy involves IVF, so the resulting child faces twice the risk of major birth defects than a naturally-conceived child.

Just as the risk of birth defects varies with the method used to accomplish the surrogacy, so does the risk of decreased parental investment. This risk to the resulting child seems to revolve around his or her genetic relatedness to the intended parents, a factor that is not entirely captured by the intended mother's infertility. Consider, for example, a gestational agreement that combines an intended mother's egg with donor sperm, as shown in Table 1. The intended mother may be unable to carry a child to term, satisfying the statutory requirement of infertility. Yet, because the genetic material comes from both intended parents, there is no reason to expect that this genetic child would be treated differently than a naturally-conceived one.

Very different risks are posed by the various surrogacy techniques shown in Table 1. Some surrogacy methods produce nongenetic children who face significant risks of both major birth defects and diminished parental investment (e.g., IVF using donor egg and sperm). Other methods diagramed in Table 1 pose no risk of major birth defects, but some risk of decreased parental investment (e.g., AID of the surrogate with donor sperm). Still other methods pose a risk of birth defects, but no risks of diminished parental investment (e.g., IVF of intended parents’ sperm and egg). Depending on the surrogacy method used, a legislature may reasonably conclude that the risks of diminished parental investment are not of sufficient magnitude that society should tie use of surrogacy arrangements to infertility. Alternatively, a legislature may choose to address this risk by requiring an intended parent to supply the egg or sperm for the resulting child, as the Commonwealth of Virginia does. VA. CODE ANN. § 20-160(B)(9) (Lexis-Nexis 2002) (requiring for enforcement of a surrogacy agreement that one intended parent be the genetic parent of the resulting child).

124 See supra Part IV.A.

125 Id.

126 Hansen et al., supra note 31, at Table 3.

127 Id.

128 Case & Paxson, supra note 71, at 301 & Table 3.

129 Educational Attainment, supra note 71, at 278, 275.

130 Selfish Gene, supra note 71, at 782-83, 798-99.

131 Kraus, supra note 101, at Table 1.