This is Part One in a two-part series of columns on this case. Part Two will appear tomorrow, January 20. – Ed.
The facts underlying a contentious recent New Jersey family law case go as follows: A gay male couple, desiring to become parents together, utilized surrogacy to bring twins into the world. The sperm came from one of the men; a woman donated eggs, and another woman gestated the resulting twins. The entire arrangement was set forth, and agreed to, in a series of contracts. The purpose of these agreements was to ensure that the two women would have no parental rights with respect to the children, while the two men would both be legal fathers of the children.
However, a trial judge in New Jersey has just ruled that the contracts are unenforceable, and that the twins' legal parents are the man who provided the sperm and the woman who carried the twins. The ruling, A.G.R. v. D.R.H., provides an opportunity to consider the complicated, and often uncertain, law of surrogacy twenty years after the issue was foisted into public debate by the notorious Baby M case.
In this column -- the first in a two-part series -- I will examine the development of surrogacy law. In Part Two, I will discuss the recent ruling and the questions it raises about the current legal framework.
What is Surrogacy?
At the most basic level, surrogacy is any arrangement in which a woman carries a baby for someone else. Although the legal controversy surrounding surrogacy is a modern one, surrogacy has been practiced in some form since ancient times. In the Old Testament, the Book of Genesis tells of Abraham's wife, Sarah, who "gave" her handmaid, Hagar, to her husband because she was barren. Hagar then gave birth to Ishmael, who was to be raised by Abraham and Sarah. Surrogacy of this sort no doubt occurred once in a while over the course of the centuries, but quietly and privately.
Surrogacy became more widespread and more controversial in the late 1980s, as it began to be used by infertile couples seeking to have children with a biological tie to at least one parent. In so-called "traditional surrogacy," a surrogate is inseminated with sperm from the intended father (or possibly from an unknown donor). The surrogate provides both the egg and the womb, with the intent that the man and his wife will be the child's legal parents.
With advances in reproductive technology, however, a different type of surrogacy – so-called "gestational surrogacy" – has emerged as the dominant form of surrogacy. In this arrangement, the surrogate, or "gestational carrier," provides only the womb, not the egg. This requires more than artificial insemination (or the giving of one's maid): In vitro fertilization ("IVF") is used to implant an embryo -- conceived with egg and sperm either from one or both of the intended parents or from donors – in the surrogate's womb.
Surrogacy can be used in a variety of situations, but is most commonly employed by couples with female-factor infertility or gay men seeking to have children either alone or as part of a male couple.
The Emergence of "Surrogacy Law": Baby M and its Aftermath
Scientific advances and increasing social acceptance for non-traditional methods of family formation have made surrogacy both possible and more popular. But they provide no answer to the complicated set of questions that arise when a surrogacy arrangement breaks down. Who are the parents of a child carried by a surrogate? Does the answer differ based on whether the surrogate provides the egg as well as the womb? Does it matter whether the surrogate was paid by the intended parents?
These questions were thrust before courts and legislatures for the first time in the 1980s, when the Baby M case worked its way through the court system. In that case, Mary Beth Whitehead conceived a child through traditional surrogacy for William Stern, who provided the sperm, and his wife, Elizabeth, who believed (perhaps incorrectly) that she had multiple sclerosis and would not be able to safely carry a child. Pursuant to a written surrogacy agreement, the Sterns agreed to pay $10,000 to Mary Beth who, in return, agreed to relinquish custody and parental rights after delivery. The Sterns also paid $7500 to a broker who handled the legal and technical aspects of the arrangement.
After "Baby M" was born, a series of events occurred that eventually led the parties to court. Mary Beth did relinquish the baby initially, but then she pleaded for a temporary visit and absconded with the child. She and her husband moved with the baby from hotel to hotel in Florida for three months, while trying to evade both the Sterns and law enforcement. Several of the conversations between Mary Beth and William were recorded, and they reveal an escalating fight that included Mary Beth's threatening to commit suicide, to kill the child, and to falsely accuse William of child molestation.
The basic question at trial, when the matter finally landed in court, was whether the surrogacy contract was valid and enforceable under New Jersey law. The trial lasted more than two months and resulted in a 121-page written opinion, ruling in favor of the Sterns. The judge concluded that they were the legal parents of Baby M, and that Mary Beth's parental rights were to be terminated.
But the New Jersey Supreme Court reversed that ruling, holding, in 1988, that William Stern was Baby M's legal father, but that Mary Beth Whitehead – not Elizabeth Stern -- was her legal mother. On remand, William was awarded full custody on a "best-interests-of-the-child" analysis, so he and Elizabeth ultimately served as Baby M's functional parents, with Mary Beth receiving only visitation rights.
In the course of ruling in favor of Mary Beth Whitehead, the New Jersey Supreme Court concluded broadly that surrogacy contracts are "illegal and unenforceable". The court saw danger for everyone involved if the contracts were to be upheld:
"The long-term effects of surrogacy contracts are not known, but feared -- the impact on the child who learns her life was bought, that she is the offspring of someone who gave birth to her only to obtain money; the impact on the natural mother as the full weight of her isolation is felt along with the full reality of the sale of her body and her child; the impact on the natural father and adoptive mother once they realize the consequences of their conduct."
Baby M was the subject of tremendous, and contentious, public debate. As law professor Carol Sanger observed, the case "provoked philosophical debate, political organizing, and legislative action as ethicists, feminists, theologians, lawmakers, and local men and women weighed in on surrogacy's moral, legal, and practical significance."
When Baby M reached New Jersey's highest court, there was essentially no law on the books regarding surrogacy – in that state or elsewhere. But the ruling triggered action across the country. Bills to ban or regulate surrogacy were introduced in more than half of the states within about a year of the ruling.
The New York legislature considered a bill to permit surrogacy subject to certain restrictions, but ultimately dropped it in favor of a 1992 bill providing that agreements for paid surrogacy are unenforceable. At the opposite end of the spectrum, however, the California Supreme Court enforced a surrogacy agreement in a 1993 case, Johnson v. Calvert, ruling that the intended parents of a child were the legal parents, and the surrogate was not. In that case, however, the surrogate was not the genetic mother; she provided only the womb.
A New Approach: Permit, but Regulate
Despite Baby M and the surrogacy bans in other jurisdictions that followed, surrogacy continued to gain popularity as a means of reproduction for couples dealing with infertility and for gay male couples. Over time, gestational surrogacy came to replace traditional surrogacy in virtually all cases. With that shift has come the greater acceptance of paid surrogacy. In the last decade, as many as ten states have passed laws to permit, but also to regulate paid, gestational surrogacy.
Illinois's Gestational Surrogacy Act of 2004, for example, is expressly designed to "facilitate the use of this type of reproductive contract in accord with the public policy of this State." Towards that end, the law restricts who can serve as a surrogate – a woman must be at least 21 years old, must have given birth already, must have received physical and mental health evaluations, and must have received legal advice about the arrangement. The law also restricts who can utilize a surrogate – the intended parents must have proven infertility or must have a sufficient medical reason to resort to surrogacy.
The law also imposes procedural and substantive requirements on the agreement itself – the agreement must be executed with some formality, for example, and the surrogate must be permitted to choose her own doctor. If the legal requirements are met, the Illinois law provides that the surrogate has no parental rights or obligations with respect to any resulting children, and that the intended parents, in contrast, have the full rights and obligations that come with legal parental status. Other states, including Connecticut, Florida, and Texas, have passed similar statutes.
Overall, a Mixed National Landscape When It Comes to Surrogacy Law
The national landscape for surrogacy law is thus checkered. At least ten states prohibit surrogacy completely or in certain circumstances by statute or court ruling; another ten or so expressly permit it, subject to regulation. In the remaining states, however, the legality and enforceability of surrogacy agreements is uncertain.
In the second part of this series, I will consider the recent New Jersey case I mentioned at the very start of this column, in which a trial court invalidated a gestational surrogacy agreement, because it reasoned that Baby M applies with equal force to this more modern arrangement.