Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood

This article is adapted from testimony presented at a “Hearing on Surrogate Parenting” before the Senate Committee on Health and Human Services of the California Legislature on December 11, 1987.

See, gen., Alexander Morgan Capron, “Alternative Birth Technologies: Legal Challenges,” U.C. Davis Law Review, 20 (1987): 679.

The term “surrogate mother” is inaccurate because in ordinary parlance one would say that a surrogate is someone who raises another's offspring, not a child's birth mother who then releases it to the wife of its biological father. The better term would be “surrogate wife” or “breeding mother.” If the pregnancy results from an ovum that has come from the woman who plans to raise the child, the appropriate term might be “surrogate womb.”

The use of the term “surrogacy” as shorthand for the practice adds further confusion, since the term has established legal connotations associated both with decisionmakers who are legally authorized to act on behalf of incompetents and with the courts that are responsible for the welfare of incompetents. Similarly, in the bioethics literature, much attention has been paid in recent years to the use of surrogate decisionmakers for those who are incapable of making medical decisions for themselves and particularly to the advantages for competent patients of executing a durable power of attorney to name a surrogate to make decisions if and when the patient becomes incapacitated. See, e.g., U.S. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions (Washington, D.C.: U.S. Gov't Printing Office, 1982): 158–60.

Cal. Evid. Code §621 (West 1966). See also Cal. Civ. Code §7004 (West 1983), which extends the presumption in certain special circumstances (death, annulment, or divorce within 300 days of a child's birth; attempted but invalid marriages; subsequent marriage; holding out as natural child; etc.).

Cal. Civ. Code §7005 (West 1983).

See Capron , supra note 1, at 690–94.

As, for example, in the Malahoff-Stiver “case” that was worked out on the “Phil Donahue Show” in 1983, or the dispute over an early attempt at in vitro fertilization at Columbia University that was litigated in Del Z10 v. Presbyterian Hosp., 74 N.Y. Civ. Ct. (S.D.N.Y. Nov. 14, 1978) (memorandum decision).

See, e.g., N.Y. Dom. Rel. Law ã11–1 (c) ( McKinney 1977); Andrews Lori , New Conceptions: A Consumer's Guide to the Newest Infertility Treatments , rev. ed. (New York: St. Martin's, 1985), 207; Green S. Long J. , Marriage and Family Law Agreements (1984), 311 n. 693.

The standards vary from revocation at will to requiring proof of fraud or duress. Wolf Susan M. , “Enforcing Surrogate Motherhood Agreements: The Trouble with Specific Performance,” New York Law School Human Rights Annual, 4 (Spring 1987): 375, 382–83.

See, e.g., N.J.S.A. 9:3–54b (West Supp. 1984–85) (exempts stepparents).

We recognize that poor women themselves may, under some circumstances, think themselves not exploited but. Rather, empowered by an entitlement to sell babies. But poor women are caught in a double bind: It may be disempowering either to allow or to disallow “commodification” of children. If sales are disallowed, poor women remain in circumstances they perceive to be worse than becoming paid baby-producers; but if sales are allowed, poor women and their children are in danger of degrading their personhood by becoming fungible objects of exchange. See Radin Margaret Jane , “Market-Inalienability,” Harvard Law Review, 100 (June 1987): 1849, 1915–36.

Sometimes an “incomplete commodification” may be the best pragmatic solution to this kind of dilemma. For example, prostitution (commodification of sexuality) may be best handled by criminalizing pimping or other forms of brokering of sexual services, while allowing prostitutes themselves to receive money for their services as long as they do not seek state enforcement of broken promises to pay. See id.: 1921–25. On balance, however, we do not think an analogous “incomplete commodification” would be appropriate for surrogacy, at least while other forms of commissioned adoption are treated as prohibited baby-selling. See id.: 1928–30.

See Radin Margaret Jane , “Justice and the Market Domain,” in Chapman John W. , ed., Markets and Justice (NOMOS XXXI) (New York: New York University Press, forthcoming). Whether or not babies could be priced and yet not be inappropriately commodified depends on how risky allowing buying and selling would be, given the degree to which people in our society conceive of things that are purchased as fungible commodities. Even though there can be nonmarket aspects to much of what we buy and sell (for example, the personal care and concern we hope for between physician and patient), in our nonideal world, the mere fact that money changes hands might be rightly treated as having bad implications, or at least bad possibilities, for an especially sensitive case like the sale of babies, in which complete commodification would deeply undermine personhood as we conceive it.

The notion of an ownership interest was strongly expressed in the trial court opinion in In re Baby M, 217 N.J. Super 313, 372, 525 A.2d 1128, 1157 (1987), in which Judge Sorkow ruled the anti-baby-selling provisions of the adoption law inapplicable because Mr. Stern “cannot purchase what is already his.” It is also notable that in the trial court's view, the property right apparently resides with the biological father.

Fleming Anne Taylor , “Our Fascination with Baby M,” New York Times Magazine, March 29, 1987, p. 32.

But see Landes William Posner Richard , “The Economics of the Baby Shortage,” Journal of Legal Studies, 7 (1978): 323 (speculating on the possibility of a thriving market in infants).

Of course, sometimes—for reasons of deterrence as well as of compensation—the legal system places a “dollar value” on human life. Yet in doing so—even when factors such as the emotional loss to survivors or the “loss of life's pleasures” by the deceased enter the calculation of damages—the tort system acknowledges that the money is no substitute for the person. In a social system in which families are dependent on their members' earning power to obtain a decent standard of living, some compensation for the loss of earning power of a family member is just. The existence of tort remedies is of more dubious value in deterrence terms, however. While the threat of liability may deter individuals from unduly risky behavior, the existence of the system—in which the loss of human life is “compensated” by the payment of money—may encourage more life-risking activities than would occur were such losses to lie beyond the scope of the tort system, in the realm of individual revenge or societal disruption and disharmony.

See Radin , supra note 10, at 1903–21.

The child's interests would, however, be protected because when a surrogacy agreement is held invalid or is “breached” (by a mother's refusal to turn over the child), both natural parents are bound by “the statutory rights and obligations [that] exist in the absence of contract,” including custodial disposition based on the child's best interests. Surrogate Parenting v. Com. ex rel. Armstrong, 704 S.W.2d 209, 213 (Ky. 1986). The New Jersey Supreme Court likewise concluded that determining Baby M's custody on the basis of her best interests rather than automatically returning her to her mother would not embolden people to use surrogacy because its holding that surrogate mother arrangements are “unenforceable and illegal is sufficient to deter such agreements.” In re Baby M, 537 A.2d 1227, 1257 (N.J. 1988). The court also held for the future that, pending a court determination of the child's best interests, a woman who decides not to go through with a surrogate arrangement should be allowed to keep her child, absent proof that she is an unfit mother.

For example, Cal. Civ. Code §7006 (West 1983) provides that actions to establish a father and child relationship may only be commenced by the child, its natural mother, or the man presumed to be the child's father.

U.K. Department of Health and Social Security, “Responsibility of Local Authority Social Service Departments in Surrogacy Cases,” Local Authority Circular (85)12 (3 May 1985).

U.S. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Screening and Counseling for Genetic Conditions (Washington, D.C.: U.S. Gov't Printing Office, 1983): 45–47, 68–70.

[1987] Fam. 81, [1987] All ER 826, [1987] 3 WLR 31.

The court states that the refusal came from the fact that Ms. B and a professional writer co-authored a book telling her story, from which she made money.

See, e.g., Ethics Committee of the American Fertility Society, “Ethical Considerations of the New Reproductive Technologies,” Fertility & Sterility, 46 (Supp. 1) (1986): 2S–6S; Robertson John , “Procreative Liberty and the Control of Conception, Pregnancy and Childbirth,” Virginia Law Review, 69 (1983): 405.

Although the people who seek surrogate arrangements are today typically married couples, single persons—especially single men—might also seek to make such contracts. If “reproductive rights” apply here, that which is permitted to couples may apply to singles as well because the Supreme Court has made clear in other contexts that many privacy rights regarding reproductive decisions protect the unmarried equally with the married. See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972). See also Note, “Reproductive Technology and the Procreative Rights of the Unmarried,” Harvard Law Review, 98 (1985): 669, 684–85.

See Capron , supra note 1, at 699–700.

See Littleton Christine , “Reconstructing Sexual Equality,” California Law Review, 75 (1987): 1279.

Cf. Tribe Laurence , American Constitutional Law , 2d ed. (Mineola, N.Y.: Foundation Press, 1988), 1582: “[A]n approach to the equal protection clause that is dominated by formal comparisons between classes of people thought to be similarly situated is inadequate to the task of ferreting out inequality when a court confronts laws dealing with reproductive biology, since such laws, by definition, identify ways in which women and men are definitely not similarly situated.” The Supreme Court's attempts to deal with such problems have been seen by many commentators as unsatisfactory, whether its approach has been symmetrical or asymmetrical. See, e.g., Geduldig v. Aiello, 417 U.S. 484 (1974) (California's failure to cover pregnancy and childbirth in its disability insurance system did not violate equal protection, because it covered all “nonpregnant persons,” both male and female); Michael M. v. Superior Court, 450 U.S. 464 (1981) (California's statutory rape law providing for criminal sanctions only upon the male participant in underage, nonmarital sex did not violate equal protection, because only women bear the risk of becoming pregnant). Recently the Court adopted an asymmetrical approach, albeit in a statutory context, in California Federal Savings & Loan Ass'n v. Guerra, 107 S.Ct. 683 (1987) (California statute requiring unpaid leave with guaranteed job reinstatement for pregnancy, but not for disabilities unrelated to pregnancy, is not preempted by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act to require that employers treat pregnancy the same as any other disability, because the statute makes it possible for female as well as male workers to keep their jobs and also become parents). For a discussion of the debate on this issue within the community of feminist legal scholars, see Littleton , supra note 26.

Although the “Nobel Sperm Bank” plainly hoped to attract suitable female clients because of the perception that its sperm samples were genetically superior, it did not operate on a market basis. Yet it still serves as an illustration of the risk that the men from whom sperm are obtained could be treated like commodities were a true “sperm market” permirted to operate.

See Baby M , supra note 12.

The same argument applies when reasons other than infertility (such as genetic risk) preclude a person from being a biological parent.

Since the downfall of Lochner v. New York (198 U.S. 45 [1905])—which invalidated a state law setting a ten-hour daily maximum and sixty-hour weekly maximum for employment by bankers—there is no constitutional right to treat anything and everything as commodities in a laissez-faire marketplace. Tribe, supre note 27, summarizes this era in American legal history in Chapter 8, entitled “The Model of Implied Limitations on Government: The Rise and Fall of Contractual Liberty.”

Substantive due process notions do still occasionally emerge in decisions in which the Supreme Court limits governmental restrictions of individual choices about some fundamental matters. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion voids city's attempt to zone for nuclear family residence).

See, e.g., Robertson John , “Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction,” Southern California Law Review, 59 (1986): 939–34. 405 U.S. 438, 453 (1972).

Berlin Isaiah , Four Essays on Liberty (Oxford: Clarendon Press, 1969).

American Civil Liberties Union of Southern California, Policy #262a (Surrogate Parenting) §C(1)(b) (adopted March 18, 1987). The policy states that a child is being treated as property “if (a) her/his custody is conditioned on payment of consideration or vice versa or (b) consideration or custody is conditioned upon the child surviving for any fixed period of time, or upon the child's meeting specifications concerning fitness, health, race, gender, color, genetic identification, or other such criteria.” Id.: §B(1).

In Maher v. Roe, 432 U.S. 464 (1977), for example, the Court denied the claim that a woman had a right to public funding of an abortion, even though the choice to abort is for the Court a cardinal instance of the right of privacy. Although Maher is thus a formidable doctrinal obstacle for those who would claim some positive right to enforcement of surrogacy contracts, we do not mean to endorse its rationale. Because state denial of freedom to choose abortion is, in the context of the current gender bias in economic and social power, a denial of equal opportunity to women, we think the right to choose abortion would be better analyzed as an equality right than as a privacy right.

As the ACLU of Southern California concludes, people may not exercise their right to form a family in a manner “that would compel the waiver or alienation of the fundamental rights of [a] surrogate.” See ACLU, Surrogate Parenting, supra note 36, at §C(1)(a). In the Baby M decision, the New Jersey Supreme Court identified the surrogate's right to the companionship of her child as “a recognized fundamental interest protected by the Constitution” (subject, it said, to state regulation). In re Baby M, 537 A.2d 1227, 1255 (N.J. 1988). In contrast, it noted that the father's asserted right to procreate “very simply is the right to have natural children whether through sexual intercourse or artificial insemination.” Id.: 1253. William Stern had a right to father Baby M but not to insist that she be turned over to him to raise or that the Whiteheads be forced to fulfill their promise to relinquish their parental rights to the Sterns.

For example, in Roe v. Wade the Court held that through the first trimester of pregnancy, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.” 410 U.S. 113, 147 (1973).