| A surrogate mother
is a woman who, before conception, commits to someone else being
the legal parent(s) of the child. The surrogate may or may not
be the biological mother. In traditional surrogacy the surrogate's
egg is fertilized by the sperm of the intended father through
artificial insemination. There is also the possibility of an
embryo being implanted in the surrogate, so she is not biologically
related to the child, but is only the gestational carrier.
Surrogacy goes back in antiquity. The first recorded surrogacy
involved Abraham and his wife Sarai, who was barren. Sarai
said to Abraham, "Behold, the Lord hath restrained me from
bearing. I pray thee go unto my maid; it may be that I may
obtain children by her." The surrogate was the servant Hagar.
Genesis 16:2.
Surrogacy burst into public attention in 1987 when the media
followed every turn of the New Jersey Baby M surrogacy case.
It was the O.J. Simpson case of that decade. State legislatures,
including Illinois, immediately jumped on the bandwagon and
drafted surrogacy legislation, but in Illinois, as in many
other states, legislators found the issue to be politically
controversial, so the three surrogacy bills never came out
of the Illinois Senate Judiciary Committee for a vote.
Since Baby M a new reproductive science developed, Assisted
Reproductive Technology (ART), which readily lends itself to
surrogacy. There is now not only artificial insemination, but
there is also the capacity to freeze sperm, freeze ova (eggs)
and freeze embryos. Using ART technology, in which in vitro
fertilization (IVF) is the core, most people with infertility
problems can have a child related to at least one of the intended
parents.
Why the popularity of surrogacy? It is the overarching issue
of married couples, single people, and homosexual couples to
have children when a child cannot be conceived.
From my experience people who choose to have a child through
surrogacy or adoption often delayed having children in order
to pursue career goals and, when they attempt to conceive,
they found an infertility problem.
I found my "fifteen minutes in the sun" when the Baby M case became the darling
of the media. Several years before Baby M I founded and chaired the American
Bar Association, Family Law Section Surrogacy Committee. I founded it because
I felt surrogacy was going to become a cutting edge family law issue. I wanted
the ABA to become aware of the legal issues involved in surrogacy and the
best way to do so was to draft a Model Surrogacy Act. This is what the committee
did. The Model Surrogacy Act was completed a short time before Baby M broke.
Media people were looking for an authority on surrogacy and my name came
up. This led to media quotes and television appearances.
Surrogacy remains controversial in Illinois, except for gestational
surrogacy in which genetic materials (father's sperm and mother's
egg) are those of the intended parents. For gestational surrogacy,
Illinois recently adopted a statute which has a simplified
non-adoption procedure by which the parents can obtain a birth
certificate. For all other types of surrogacy, there is no
legislation or case law guidance. (But see "Illinois Becomes Surrogacy Friendly".)
Are surrogacies happening in Illinois? Yes, definitely. The
legal problem in most surrogacies is that the child comes out
of the body of a woman who is not the intended mother. The
law, however, presumes (as it has since time immemorial) that
the legal mother is the person out of whose body the child
came. The legal solution to the problem is to terminate the
surrogate mother=s presumed parental rights, and this can only
be done by an adoption. An adoption, however, raises still
another legal problem.
If, as is the usual case, the surrogate is paid a fee for
her services for being inseminated, or having the embryo implanted
in her, and for delivering the child, when the case comes up
for adoption the judge will have a legitimate concern that
the mother has been paid a fee, and of course "baby buying"
is unlawful. The legal challenge, therefore, is to demonstrate
to the judge that in surrogacy the intended parents are not
buying a child, but only paying for the services of the surrogate.
The lawyers task is to distinguish surrogacy from adoption.
Of course the main distinction is that in most adoption circumstances
the mother did not become deliberately pregnant, so payment
of money to her might be an inducement to give up the child.
On the other hand, a surrogate mother deliberately becomes
pregnant with the intent of giving up the child, so paying
for her services is a controversial payment for services rendered.
I attempt to assure against my clients, the intended parents,
being charged with a "baby buying" crime (and for that matter,
my being in complicity) by bringing to the court, before the
surrogacy contract is signed, a declaratory judgment proceeding
in which I ask that the judge find the intended surrogacy contract
is not in contravention to laws prohibiting payment or receipt
of compensation for the placing of a child for adoption.
The first step in representing intended parents in a surrogacy
arrangement is the drafting of a surrogacy agreement between
the intended parents and the surrogate (and the surrogate=s
husband if she is married). The drafting of such a contract
requires the lawyer to have knowledge of the science of reproduction
and a working knowledge of obstetrics. Not too long ago I had
a lawyer telephone me and ask if, for a fee, I would send him
my "form contract for surrogacy" so he could fill it in. I
determined he did not have sophistication in reproductive technology
or practical obstetrics. The lawyer assumed that if he had
a fill in the blanks contact it would be as simple as a residential
real estate deal. I told the lawyer that giving him such a
contract would be like giving a loaded gun to a child.
For a lawyers building a family unit through the addition of a child is rewarding.
What does the contract accomplish? The main purpose is that the surrogate
mother agrees to give up the child to the intended parents. Other purposes
are to state what the compensation paid to the mother is, to control the
mother's activities during pregnancy, address the right to terminate the
pregnancy etc. Considering the number of surrogacies there have been, the
surrogate mother has reneged on custody in very few cases, the most notorious
being Baby M, 109 N.J. 396, 537 A.2d 1227 (NJ 1988) and the California case
of Johnson v. Calvert. 5 Cal.4th 84, 851 P.2d 19 (1993). Both of these cases
were decided in favor of the intended parents, however, it was not on the
basis of the contract, but on the basis of what the intentions of the parties
were and the best interest of the child. The contracts were the significant
factor in determining intention. Thus, while the contract may not be enforced,
the contract is essential because it demonstrates the intent of the parties.
|
