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This article does not discuss the issue of whether the surrogate motherhood procedure should only be available in cases of necessity. The use of a surrogate on behalf of a single male raises ethical and policy considerations not covered in this article. Generally, however, where a jurisdiction allows single parent adoptions, the parallel result effected through a surrogate should also be allowed. For simplicity, all future references to surrogate motherhood will be in the context of a married couple.Google Scholar

See, e.g., Louisville Courier-Journal, November 24, 1979:“Childless couple—wife unable to conceive—looking for woman who would agree to be artificially inseminated with semen of husband and then give child to couple. All responses confidential, all expenses paid. Please state fee expected.”Google Scholar

Comment, Contracts to Bear a Child, California Law Review 66(3): 611, 611 (May 1978) [hereinafter referred to as Contracts to Bear a Child].Google Scholar

Markoutsas, , Parenting by Proxy—A Story of Love and Friendship, Chicago Tribune, January 14, 1980, §2 (Tempo) at 1, col. 1; Quindlen, , Surrogate Mothers: A Controversial Solution to Infertility, New York Times, May 27, 1980, at B12, col. 1. See Parker, P., Surrogate Mothers' Motivations: Initial Findings, American Journal of Psychiatry 140(1): 117 (January 1983) (discussion of why women desire to become surrogate mothers).Google Scholar

Another alternative is in vitro fertilization, available to couples in which female infertility is the result of “blocked” fallopian tubes. See Flannery, Test Tube Babies: Legal Issues Raised by In Vitro Fertilization, Georgetown Law Journal 67(6): 1295, 1305 n. 68 (August 1979); Law and Ethics of A.I.D. and Embryo Transfer (CIBA Foundation Symposium 1973); Reich, W., Encyclopedia of Bioethics (Gale Research Co., Detroit, Mich.) (1978) at 1448–51; Shaman, , Legal Aspects of Artificial Insemination, Journal of Family Law 18: 331, 332 (1980); Oakley, , Test Tube Babies: Proposals for Legal Regulation of New Methods of Human Conception and Prenatal Development, Family Law Quarterly 8: 385 (1974).Google Scholar

Note, Surrogate Motherhood: The Outer Limits of Protected Conduct, Detroit College of Law Review 1981 1131 [hereinafter referred to as Outer Limits]; Griffin, , Womb for Rent, Student Lawyer, pp. 28, 29 (April 1981).Google Scholar

Finegold, W., Artificial Insemination (2d ed. 1976) at 92 (couples with artificially inseminated by donor children preferred artificial insemination by donor to adoption because of dissatisfaction with adoption procedures, desire for the experience of pregnancy, benefits derived from maternal heredity, and closer relationship with the child).Google Scholar

See generally Dienes, C.T., Artificial Donor insemination; Perspectives on Legal and Social Change, Iowa Law Review 54:253 (1968/1969).Google Scholar

See Contracts to Bear a Child, supra note 4, at 611–12.Google Scholar

Forerunners have been an attorney, Noel Keane, from Dearborn, Michigan, and Dr. Richard Levin and Attorney Katie Brophy, co-founders of the Surrogate Parenting Association, in Louisville, Kentucky.Google Scholar

Alaska, California, Maryland, Michigan, Ohio, and South Carolina. Krimmel, H.T., The Case Against Surrogate Parenting, Hastings Center Report 13(5): 35, 38 (October 1983).Google ScholarPubMed

Car, S. House No. 3491 (January 26, 1982).Google Scholar

Kinney, , Legal Issues of the New Reproductive Technology, California State Bar Journal 52: 514, 514 (1977).Google Scholar

Id.Google Scholar

Comment, Artificial Human Reproduction: Legal Problems Presented by the Test Tube Baby, Emory Law Journal 28(4): 1045, 1077 (1979). See generally supra note 6.Google Scholar

See generally Note, Surrogate Mothers: The Legal Issues, American Journal of Law 81 Medicine 7(3): 323, 342–44 (Fall 1981) [hereinafter referred to as Legal Issues];, Keane, N., Legal Problems of Surrogate Motherhood, Southern Illinois University Law Journal, 1980(2): 147, 149–52. A fairly comprehensive scheme of regulation is established in those jurisdictions which have enacted the Uniform Parentage Act. See, e.g., Cal. Civ. Code §7005 (1983): (a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and retain the husband's consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown. (b) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived.Google Scholar

See, e.g., Hoch v. Hoch, No. 44C-9307 (Cir. Ct. Cook County Ill. 1945) (artificial insemination does not constitute adultery); Doornbos v. Doornbos, 23 U.S.L.W. 2308 (Ill. App. 1954) (artificial insemination is “contrary to public policy and good morals and constitutes adultery”). See also Gursky v. Gursky, 39 Misc.2d 1083, 1088 (N.Y. Sup. 1963) (artificial insemination is adultery and the child is illegitimate); In re Adoption of Anonymous, 74 Misc.2d 99, 104-05 (N.Y. Sur. Ct. 1973) (reversing position).Google Scholar

People v. Sorensen, 68 Cal.2d 280 (Cal. 1968). See also In re Anonymous, 74 Misc.2d 99, 105 (N.Y. Sur. Ct. 1973). See generally Dienes, supra note 9, at 256–60, 278–97; Smith, G.P., Through a Test Tube Darkly: Artificial Insemination and the Law, Michigan Law Review 67; 127 (November 1968).Google Scholar

See Flannery, , supra note 6.Google Scholar

See, e.g., Cal. Civ. Code §7005(a) (1983); La. Civ. Code Ann. art. 188 (West Supp. 1984).Google Scholar

See, e.g., Conn. Gen. Stat. Ann. §45-69 (Rev. 1958); N.C. Gen. Stat. §49 A-1 (1976).Google Scholar

See, e.g., Cal. Civ. Code §7005(b) (1983); Conn. Gen. Stat. Ann. §45-69j (rev. 1958). This provision appears to work to the detriment of the surrogate procedure which aims to produce a child related to the husband (semen donor) of the contracting couple, both in fact and in law.Google Scholar

For a detailed examination of parallels between artificial insemination statutes to proposed in vitro statutes, see Flannery, supra note 6, at 1299.Google Scholar

Also of special concern where the surrogate is married are those statutes which presume that the husband is the natural father of a child born during the marriage. See, e.g., Cal. Civ. Code §7004(a)(1) (1983).Google Scholar

A brief discussion of this issue may also be found in Legal Issues, supra note 17, at 344–45.Google Scholar

See, e.g., Cal. Civ. Code §7005(a) (1983). See also Comment, Artificial Insemination—A Model Statute, Cleveland State Law Review 24: 341, 353 (1976) [hereinafter referred to as A Model Statute]. Section 4 of the proposed statute provides for confidentiality of records.Google Scholar

See Comment, Breaking the Seal: Constitutional and Statutory Approaches to Adult Adoptees' Right to Identity, Northwestern University Law Review 75(2): 316, 342 (April 1980); Note, The Current Status of the Right of Adult Adoptees to Know the Identity of Their Natural Parents, Washington University Law Quarterly 58(3): 677, 703 (1980).Google Scholar

See American College of Obstetricians and Gynecologists, Ethical Issues in Surrogate Motherhood (May 1983) (policy statement).Google Scholar

See Legal Issues, supra note 17, at 341–42.Google Scholar

Curie-Cohen, , Current Practice of Artificial Insemination by Donor in the United States, New England Journal of Medicine 300(11): 585, 588 (March 15, 1979) (inadequate screening of artificial insemination donors may be the norm).Google ScholarPubMed

See New York City, N.Y. Health Code an. 21 (1959) (reprinted in A Model Statute, supra note 27); Or. Rev. Stat. §677.370 (1979).Google Scholar

See Fogarty-Brabender, D., “Wrongful Birth”: Should Liability Be Imposed upon a Physician Who Fails to Warn Parents of the Risks of Defects in Their Unborn Children? Gonzaga Law Review 14(4): 891 (1979); Shaman, , supra note 6, at 347.Google ScholarPubMed

See Legal Issues, supra note 17, at 341–42, n.95 (also dismissing the possibility of criminal liability of the attorney if the surrogate motherhood arrangement is found to be illegal).Google Scholar

Keane, , supra note 17, at 47; Brophy, , A Surrogate Mother Contract to Bear a Child, Journal of Family Law 20: 263 (1982) [hereinafter referred to as Surrogate Mother Contract]. Brophy presents a surrogate mother contract and cautions that many contract terms may be unenforceable. Other commentators agree. See Note, Surrogate Mother Agreements: Legal Aspects of a Biblical Notion, University of Richmond Law Review 16(2): 467, 469 n.12 (1982).Google Scholar

Note, Surrogate Motherhood: Medical Reality in a Legal Vacuum, Journal of Legislation 8:140, 140 (1981) [hereinafter referred to as Medical Reality].Google Scholar

See supra note 13.Google Scholar

Doe v. Attorney General, 307 N.W.2d 438 (Mich. App. 1981), affirming Doe v. Kelley, [1979–1981] Reporter on Human Reproduction and the Law (Legal-Medical Studies, Inc.) II-B-15 (Wayne County Cir. Ct., Mich. 1981) Iv. denied, 414 Mich. 875 (1982), cert, denied, 103 S. Ct. 834 (1983); In re Baby Girl, 9 Fam. L. Rep. 2348 (Ky. 1983); Syrkowski v. Appleyard, 122 Mich. App. 506 (1982); Baby's Father Agrees to Withdraw His Suit Over Surrogate Birth, New York Times, June 4, 1981, at 12, col. 1 (custody suit filed in California by the father of a boy born to a surrogate mother with whom he had contracted was dropped following an out-of-court settlement). In addition, the attorneys general of Kentucky and Ohio have issued advisory opinions regarding surrogate motherhood. Op. Att'y Gen. 81-18 (Ky. 1981); Op. Att'y. Gen. 83-001 (Ohio 1983). Both of these rulings were unfavorable to the practice.Google Scholar

Medical Reality, supra note 36, at 144.Google Scholar

Id. at 147.Google Scholar

Legal Issues, supra note 17, at 327 n.22, citing Calamari, J. Perillo, J., Law of Contracts §22-2-22-14 (West Publishing Co., St. Paul, Minn.) (2d ed. 1977). See also Marcus, , Booming Surrogate Mother Practice: The Baby Maker, National Law Journal, August 25, 1980, at 1.Google Scholar

Legal Issues, supra note 17, at 327.Google Scholar

See, e.g., id. at 328–29.Google Scholar

Medical Reality, supra note 36, at 144.Google Scholar

Legal Issues, supra note 17, at 329, n. 32, and accompanying text.Google Scholar

N.J. Stat. Ann. §9:3:39 (West 1977). Legal Issues, supra note 17, at 329 n.32, and accompanying text.Google Scholar

Legal Issues, supra note 17, at 329-30.Google Scholar

See, e.g., Mich. Comp Laws Ann §710. 54(1) (West Supp. 1983–1984):Google Scholar

(1) Except for charges and fees approved by the court, a person shall not offer, give, or receive any money or other consideration or thing of value in connection with any of the following:Google Scholar

(a) The placing of a child for adoption.Google Scholar

(b) The registration, recording, or communication of the existence of a child available for adoption or the existence of a person interested in adopting a child.Google Scholar

(c) A release.Google Scholar

(d) A consent.Google Scholar

(e) A petition.Google Scholar

An exception in many states does allow the payment of direct medical expenses of pregnacy and some maintenance expenses of the mother. Legal Issues, supra note 17, at 330 n.35, and accompanying text.Google Scholar

Permitting payment may be the practical equivalent of requiring it because once available, few surrogates, even those motivated by altruism, would reject compensation. This was the experience of “Elizabeth Kane,” a Louisville surrogate, who did not want to be paid but accepted payment because “others were being compensated.” It's the Father's Child—I Am Simply Growing It for Him, New York Times, May 27, 1980, at B12, col. 2. As a consequence of ‘required payment,” access may be dented to those couples who cannot afford a fee. In the future, the situation may arise where less wealthy couples “settle for a surrogate who does not meet physical or psychological standards but whose fee is reasonable.” Comment, Surrogate Motherhood in California: Legislative Proposals, San Diego Law Review 18(2): 341, 379 (March 1981) [hereinafter referred to as Legislative Proposals]. See also Editorial: Gestation Inc., New York Times, November 23, 1980, §4, at 20, col. 1.Google Scholar

Doe v. Attorney General, 307 N.W. 2d 438, 442 (Mich. App. 1981).Google Scholar

Legislative Proposals, supra note 49, at 377, citing Williston on Contracts (3d ed. 1972) at 1744; 67A C.J.S. Parent and Child §16(1978), Contracts to Bear a Child, supra note 4, at 613. See generally Doe v. Attorney General, supra note 50 (surrogate mother cannot receive fee).Google Scholar

Legal Issues, supra note 17, at 327, 330.Google Scholar

Id. at 331.Google Scholar

Id.; Contracts to Bear a Child, supra note 4, at 619. It has also been argued that anti-baby-barter provisions ensure that a potential mother will not create a child primarily from financial need or greed.“If children are not chattels to be bargained away, neither are they products to be man ufactured for gain.” Legislative Proposals, supra note 49, at 380. Yet, if the concern is that in the future a woman might be financially coerced into becoming a surrogate, statutes more narrowly drawn to deal with this specific evil can be written if the need arises. Legal Issues, supra note 17, at 331 n.41.Google Scholar

Contracts to Bear a Child, supra note 4, at 613Google Scholar

Outer Limits, supra note 7, at 1144 n.75. See, e.g., Cal. Civ. Code §244r (West Supp. 1981). Other states have determined that the payment of money in connection with an adoption is not per se odious, especially with the adoption of “hard to place” children.Google Scholar

Legal Issues, supra note 17, at 331, Legislative Proposals, supra note 49, at 378.Google Scholar

Id.Google Scholar

“Opponents of the surrogate motherhood procedure may argue that the state can prohibit socially unacceptable forms of services, such as prostitution or other private consensual acts.” Legal Issues, supra note 17, at 331, n.42. Yet our society commonly allows individuals to use their bodies for economic purposes. Certain occupations, such as modeling or athletics, amount to little more than this. Individuals also receive compensation for becoming subjects of medical research or for giving blood or sperm. Since states permit these economic uses of one's body, it would be incongruous to prevent a surrogate mother from performing services on these grounds.Google Scholar

Carey v. Population Serv. Int'l, 431 U.S. 678, 684 (1977), citing Whalen v. Roe, 429 U.S. 589, 599–600 (1977).Google Scholar

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).Google Scholar

Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., concurring).Google Scholar

Carey v. Population Serv. Int'l, 431 U.S. 678, 687 (1977), citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).Google Scholar

For further treatment of the constitutional argument, see Outer Limits, supra note 7; Medical Reality, supra note 36, at 156–58; Keane, , supra note 17, at 161–66.Google Scholar

Legal Issues, supra note 17, at 332.Google Scholar

Doe v. Attorney General, 307 N.W.2d 438 (Mich. App. 1981).Google Scholar

Id. at 443.Google Scholar

Doe v. Kelley, [1979–1981] Reporter on Human Reproduction and the Law (Legal-Medical Studies, Inc.) II-B-15, 22 (Wayne County Cir. Ct., Mich. January 1980).Google Scholar

Legislative Proposals, supra note 49, at 374 n.165. Brief for Defendant at 11, Doe v. Kelley, supra note 68. See Harris v. McRae, 448 U.S. 297 (1980) (woman's indigency, rather than governmental restraints, restricts her ability to enjoy the full range of freedom of choice).Google Scholar

Legal Issues, supra note 17, at 331; Outer Limits, supra note 7, at 1146.Google Scholar

Contracts to Bear a Child, supra note 4, at 146.Google Scholar

Medical Reality, supra note 36, at 146; Contracts to Bear a Child, supra note 4, at 614.Google Scholar

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Legal Issues, supra note 17, at 323.Google Scholar

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Hamer v. Sidway, 27 N.E. 256, 257 (N.Y. 1891).Google Scholar

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Legal Issues, supra note 17, at 326.Google Scholar

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Keane, , supra note 17, at 167, citing Restatement of Contracts §333 (1933); Calamari & Perillo, supra note 83, at 14–9; Dobbs, , supra note 83, at 787–88.Google Scholar

Keane, , supra note 23, at 167.Google Scholar

Restatement of Contracts § 341.Google Scholar

Id.; Legal Issues, supra note 17, at 334; Dobbs, , supra note 83, at 819–20.Google Scholar

“Rich women are unlikely to contract to become surrogate mothers.” Keane, , supra note 17, at 167.Google Scholar

Legal Issues, supra note 17, at 336.Google Scholar

Keane, , supra note 17, at 168, citing Restatement of Contracts §371 (1933); Calamari & Perillo, supra note 83, at 16-5; Dobbs, , supra note 83, at 796.Google Scholar

Legislative Proposals, supra note 49, at 376; U.S. Const, amend. XIII.Google Scholar

These are proper contract provisions. See Flannery, , supra note 7, at 1317.Google Scholar

Legal Issues, supra note 17, at 334–35.Google Scholar

“Tracing the origin of a congenital defect in a particular child back to a particular source may be impossible.” Id. at 335, n.60.Google Scholar

Id. at 336.Google Scholar

Id. at 337.Google Scholar

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See, e.g., Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).“[S]ince the State cannot regulate or proscribe abortion during the first stage … the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.” Id. at 69.Google Scholar

“Were the surrogate to decide to abort during her pregnancy, no court would order her to continue the pregnancy against her will, regardless of the existence of a contract…” Legislative Proposals, supra note 49, at 376.Google Scholar

Legal issues, supra note 17, at 333, n.52 and accompanying text.Google Scholar

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See supra notes 8291, and accompanying text. In contrast, one Note suggests that“[a] remedy in damages should adequately protect the contract parents.” Contracts to Bear a Child, supra note 4, at 620.Google Scholar

Legal Issues, supra note 17, at 334.Google Scholar

For an actual case, see Baby's Father Agrees to Withdraw His Suit Over Surrogate Birth, supra note 38.Google Scholar

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Medical Reality, supra note 36, at 148; Legal Issues, supra note 17, at 338.Google Scholar

Legal Issues, supra note 17, at 338; Contracts to Bear a Child, supra note 4, at 620.Google Scholar

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The father may even be awarded no visitation rights and be required to pay support for the child. Comment, Artificial Insemination and Surrogate Motherhood: A Nursery full of Unresolved Questions, Willamette Law Review 17(4): 913, 950 (Fall 1981).Google Scholar

Legal Issues, supra note 17, at 338.Google Scholar

Keane, , supra note 17, at 167; Contracts to Bear a Child, supra note 4, at 619.Google Scholar

Contracts to Bear a Child, supra note 4, at 619–20; Keane, , supra note 17, at 167. The surrogate would also be able to sue the contracting couple for payment of compensation due since she completed her end of the bargain.Google Scholar

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Legal Issues, supra note 17, at 339.Google Scholar

Id. at 338.Google Scholar