Generally refers to the practice of hiring a fertile woman who agrees to become impregnated, usually through donor insemination, and agrees ahead of time to transfer the child to the infant's biological father and his wife, according to terms of a contract signed before the woman becomes pregnant. The impregnated woman is called the "surrogate mother," although technically, it is the intended mother who is more accurately described as a "surrogate."
Some infertile couples say that they do not want to adopt a child because they prefer to have a "genetic link" to their child. Yet sometimes there is still no genetic link, because the couple used both donated sperm and a surrogate mother. It also appears that these couples may seek more control than any adoption agency would allow. For example, surrogacy contracts may stipulate that the surrogate mother may not smoke, drink alcohol or engage in other behaviors.
In some very limited cases, a woman who is capable of producing ova but who cannot carry a child may opt to use a surrogate to carry a child with her genes as well as those of her husband. This is possible through modern reproductive techniques, such as embryo transfer. (See also REPRODUCTIVE TECHNOLOGIES.)
In such a case the surrogate would have no genetic link to the child; however, in the overwhelming number of cases, the surrogate does contribute her genes to the child.
Adoption comes into play in most cases. When there are no genetic links to the couple, both prospective parents usually adopt the child. If one of the individuals is a biological parent, usually the other partner must adopt from the surrogate mother. They may be able to utilize a stepparent type of adoption, although state laws vary.
Most surrogate mothers are paid for their "services": at least $15,000 upon relinquishment of the child. Organizations and attorneys that arrange surrogacy agreements also charge fees, which vary widely. If the surrogate does not become pregnant, she usually receives nothing. If she becomes pregnant but miscarries, she may receive a partial payment.
Surrogacy opponents are concerned about the money. Critics feel that planning to bear a child for a couple (or single person) in exchange for large sums of money is baby selling and should be banned.
Surrogacy opponents are concerned about many issues, especially the mother's right to change her mind about releasing the baby after the child's birth. They argue that she should have the same right to choose to parent the child as she would if she were a mother considering placing her child for adoption.
State Laws on Surrogacy vs. Adoption
States vary in how they regulate surrogacy, if they regulate it at all. In addition, the level of regulation may be very different from how adoption is regulated. It should not be assumed that a state that narrowly limits adoptions will also narrowly limit surrogacy arrangements. For example, California has very strict laws on the adoption of children but has laws that are far more liberal with regard to surrogacy.
The "Father" of Surrogate Motherhood
The late Michigan attorney Noel Keane developed the first contracts for surrogacy in 1976, and by 1988 Keane had arranged 302 births.
Keane also handled the first embryo transfer surrogacy, wherein a woman carried the genetic child of another woman and man. That child, implanted by Dr. Wolf Utian of the Mt. Sinai Medical Center in Cleveland, was delivered in 1986. According to The Detroit News, Dr. Utian did not realize the mother was a paid surrogate.
Numerous lawsuits have been filed in surrogacy cases. The most famous suit was the "Baby M" case between surrogate mother Mary Beth Whitehead and the people with whom she originally arranged to give her baby, William and Elizabeth Stern.
In this case, heard by the courts in 1987, the Sterns hired Mary Beth Whitehead to be a surrogate mother.
After Ms. Whitehead bore the child, she changed her mind about giving the baby to the Sterns, asked for the child back and ran away with the baby to Florida. Private detectives for the Sterns found Ms. Whitehead, and she was returned to New Jersey.
A lower court awarded custody of the child to the Sterns and made Mrs. Stern an adoptive mother. The New Jersey Supreme Court overturned the adoption in May of 1988 but left custody of the child with the Sterns. Whitehead was allowed visitation rights.
In a case that appeared to seek to avoid the legal necessity of an adoption, a New York couple used both paternity and maternity suits to file their legal rights in Nebraska to have both of their names placed on the child's birth certificate. In this case, the child was their genetic child. They succeeded.
According to the Nebraska attorney involved in the case, he believed it was precedent-setting and said, "The majority of the time I have been involved [in surrogacy arrangements], adoptions will take place. They are very difficult and costly. This presents itself as a less entangled, less confusing and less expensive alternative."
Author Natalie Loder Clark has argued that surrogacy cases should be considered in the same light as paternity cases. She believes the paternity settlement contract can serve as a temporary solution to disputes in surrogacy cases until state legislatures can determine for themselves what legal changes to make.
According to Clark, the biological father and the surrogate mother have similar problems and risks of unwed parents or parents who are no longer married.
Problems with Surrogacy
The key issues of surrogacy include:
In 1984 the National Council For Adoption became the first organization to take a stand against all forms of surrogate motherhood whether or not the surrogate is paid for her services. The group has been a vocal opponent of the practice itself and of the implications of surrogacy for adoption policy.
In 1988, the Child Welfare League of America board found that surrogacy was not in the best interests of a child. According to an article in Children's Voice, "In order to minimize the opportunity for confusion in the child's lifelong relationships with his/her parents, the use of surrogacy which involves a third party in conception and birth, cannot be viewed in the best interests of children, and, therefore, cannot be supported."
Surrogacy Versus Adoption
The primary difference between surrogacy and adoption is that in nonrelative adoptions, the adoptive father is not the biological father nor has he contracted to create a child. Instead, actions to adopt did not commence until after the child was conceived. Surrogacy is a planned pregnancy, usually for money; adoption is a humanitarian solution to an unplanned pregnancy.
Another difference is that every state has an adoption law, but laws on surrogacy are still evolving. In addition, in every state, if a pregnant woman who is considering adoption for her baby changes her mind about adoption before she signs consent (or within a certain time frame of signing consent, depending on state law), she may legally choose to parent her baby. Surrogate mothers often do not have the same choices over children genetically related to them, as do birthmothers considering an adoption plan.
Arguments in Favor of Surrogacy
Advocates of surrogacy believe it is unfair for the government to interfere with individuals and their private behavior and argue that surrogacy and procreation should not be restricted. Advocates include libertarian groups and organizations such as RESOLVE.
They also argue that even if surrogacy were completely banned, individuals would still arrange such contracts, albeit illegally.
In addition, supporters of surrogacy believe that if a person strongly desires a genetic link to his child and a fertile woman agrees to bear the child, then the surrogacy should proceed. They believe the surrogate mother is well-compensated for her services and see the situation as a "win-win" experience for both sides.
Arguments Against Surrogacy
Critics argue that rich people are buying babies from poor women, and if the hourly rate is computed as a wage, the woman earns far less than the minimum wage. She also experiences the discomforts and the risks of pregnancy.
Critics also dislike the idea of splitting half-siblings (in many cases, the surrogate already has a healthy child, which theoretically proves she is fertile).
Lori B. Andrews, "Alternative Reproduction and the Law of Adoption," in Adoption Law and Practice (New York: Matthew Bender, 1988).
Angie Brunkow, "Surrogacy Ruling May Be a First: NY Couple's Names Placed on Nebraska Birth Certificate," Omaha World-Herald, January 22, 1998.
Natalie Loder Clark, "New Wine in Old Skins: Using Paternity-Suit Settlements to Facilitate Surrogate Motherhood," Journal of Family Law 25:3 (1986-87): 483-527.
"CWLA Board Finds Surrogacy Is Not in Best Interest of Children," Children's Voice, May 1988, 1.
Noel Keane and Dennis L. Breo, The Surrogate Mother (New York: Everest House, 1981).
Kathryn Jean Lopez, "Egg Heads: In Vitro Fertilization," Human Life Review 24, no. 4 (Fall 1998): 406-410.
Karen Lynn Migdal, "An Exploratory Study of Women's Attitudes After Completion of a Surrogate Mother Program," Ph.D. diss., University of Southern California, 1988.
William Pierce, "Survey of State Activity Regarding Surrogate Motherhood," Family Law Reporter, January 29, 1985.
Rebecca Powers and Sheila Gruber Belloli, "The Baby Business: Mothers and Other Strangers," The Detroit News, September 20, 1989.
---, "The Baby Business: Shattered Dreams," The Detroit News, September 17, 1989, IC-4C.
---, "The Baby Business: Surrogacy's Big Daddy," The Detroit News, September 19, 1989, IG-3G.
Daniela Rodda Roher, "Surrogate Motherhood: The Nature of a Controversial Practice," Ph.D. diss., Wayne State University, 1987.
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©2000 by Christine Adamec and William Pierce, Ph.D. Reprinted from The Encyclopedia of Adoption, 2nd Edition (2nd Edition) with permission of Facts On File, Inc.