Surrogacy: The Gray Area Amidst the Body Right Battle

Kelsey Yurek
COL ’19

In the age of deep controversy over body rights and abortion, states are grappling with a method to manage surrogacy laws in both traditional and gestational cases.

Traditional surrogacy transpires when the biological mother of the child also acts as the surrogate. Though the child is intended for another individual or a set of parents, the surrogate provides her own egg for the embryo. The sperm is that of either the intended father or a sperm donor. Conversely, in gestational surrogacy, the surrogate has no biological relation to the child that she is carrying and is implanted with an embryo consisting of either a donated egg and sperm or those of the intended parents.

Current laws and regulation on surrogacy are powers that reside with individual states. Twenty-three states, about 45 percent overall, possess no laws or legal objection on the subject of surrogacy. Seventeen states permit or are highly favorable in courts toward at least one form of surrogacy. Limitations exist on certain aspects of these exchanges on points such as compensation for acting as a surrogate. Eight states and the District of Columbia either out rightly forbid partaking in a surrogacy arrangement or declare such contracts void and unenforceable. Finally, the state of Ohio remains alone as being too divided on the topic to fall under one of the aforementioned categories.

The discrepancy in policies between and within states have spurred legal battles over not only custody of the child or children once born but the fate of the fetus or fetuses prior to delivery.

A 1988 New Jersey Supreme Court case, In re Baby M, 537 A.2d 1227, 109 N.J. 396, became a landmark case in fertility and reproductive technology law. In this case, the traditional surrogacy arrangement turned sour when the biological mother requested the child be returned to her after surrendering physical custody to the intended parents. The jury, “found that our present laws do not permit the surrogacy contract used in this case. Nowhere, however, do we find any legal prohibition against surrogacy when the surrogate mother volunteers, without any payment, to act as a surrogate and is given the right to change her mind and to assert her parental rights.” [3] Ultimately, the New Jersey judge declared the surrogacy contract invalid and remanded the case to family court which established visitation rights to the surrogate and custody to the intended parents.

Historically, controversial cases across the United States have featured surrogates reneging on their initial agreements and prompting disagreement over custody with the intended parents. In recent years, though, the issue has morphed from a battle over custody to a battle over body rights.

In vitro fertilization (IVF) and intrauterine insemination (IUI) are the fertility methods by which a couple may conceive should traditional conception prove difficult or impossible. Both methods commonly produce multiple births unintentionally due to the number of embryos implanted in the mother or surrogate. Women who undergo IVF or IUI are offered the opportunity for selective fetal reduction where one or more of the fetuses is reduced through an abortion procedure to a twin or singleton pregnancy.

Such a practice has produced debate not only in society, but between surrogates and the couples for which they are carrying. One such case gained media attention in January as a surrogate mother refused to abort one of the triplets she was carrying because the intended father only desired twins. [4] Ultimately, it has been upheld that a woman cannot be forced or coerced into an abortion regardless of prior agreement. Even in a contract that allows for selective reduction, the couple and the court have no ability to hold the surrogate to her word. Surrogates in the past have refused on grounds regarding their own religious or personal beliefs, disagreement with the medical advice of doctors, and being too far along in the pregnancy for the procedure.

The advance of medical technology has a positive correlation with the rise of surrogacy as a method of conception and with it the proliferation of legal issues. No federal policies currently govern assisted reproductive technology which leaves a lot to the unknown, including the best interests of the child. [5] Still, as surrogacy and reproduction has ultimately been left up to individual states to decided, it seems unlikely that these cases will come to a resolution in the near future.

 

Notes

[1]“What is Gestational vs. Traditional Surrogacy,” Creative Love: Egg Donor and Surrogate Agency, February 9, 2016, http://www.cledp.com/what-is-gestational-vs-traditional-surrogacy.html

[2]“U.S. Surrogacy Law By State,” The Surrogacy Experience: Confidence & Care from Decision to Delivery, February 9, 2016, http://www.thesurrogacyexperience.com/surrogate-mothers/the-law/u-s-surrogacy-law-by-state/ 

[3]In re Baby M, New Jersey Supreme Court, 537 A.2d 1227, 109 N.J. 39, http://biotech.law.lsu.edu/cases/cloning/baby_m.htm 

[4]Carl Campanile, “Surrogate carrying triplets sues to stop forced abortion,” New York Post, January 4, 2016, http://nypost.com/2016/01/04/surrogate-mom-carrying-triplets-sues-to-stop-forced-abortion/ 

[5]Mark Hansen, “As Surrogacy Becomes More Popular, Legal Problems Proliferate,” American Bar Association, March 1, 2011, http://www.abajournal.com/magazine/article/as_surrogacy_becomes_more_popular_legal_problems_proliferate 

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