Should Surrogate Motherhood be Permitted?

   

                                                             Bradley 1

Meghan Bradley

Professor Despain

WR122 UH

March 12, 1997

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

                                                 Bradley 2

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)

                                                 Bradley 3

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 mother's

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 mother's

expenses during the pregnancy and delivery plus a fee for the

surrogates's 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)

                                                 Bradley 4

Many considerations are to be made in selecting a

surrogate mother.  For instance:  is the potential surrogate

healthy and free from disease, is the surrogate's genetic

material compatible with the contracting couple's 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 mother's 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. 

                                                 Bradley 5

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. 

                                                 Bradley 6

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

Judy Siegal, Experts Recommend Legalization of Surrogate

Motherhood, Jerusalem Post, July 27, 1994;  1-5

Prestataire, Law Society's Gazette(London), "Addressing

the Problems of Surrogacy", Oct. 31, 1990;  1-2

 

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