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Published online by Cambridge University Press: 06 May 2021
Increasing numbers of couples have benefitted from, or may be considering use of, the surrogate mother procedure. In this procedure, a couple, usually a husband and wife, enters into a contract with a surrogate mother. Under the terms of the contract, the surrogate mother is artificially inseminated, bears a child, and relinquishes all rights regarding that child to the semen donor and his wife. In exchange for bearing a child, the surrogate mother often receives a fee. In light of such increased use of the procedure, the issue of whether or not the arrangement is legal has particular importance. Questions of legality involve possible violations of criminal baby-selling statutes. Issues of whether adoption is necessary and whether the child is legitimate also are inherent in the surrogate mother arrangement. This Note argues that these questions should be resolved in favor of finding no impediment to the use of the surrogate mother procedure, at least within certain guidelines. However, even in the absence of legal impediment, detailed contracts and thorough medical screening for genetic, physical and psychological problems would further eliminate ambiguities regarding liability. In addition, the Note concludes that legislation should be enacted to deal with the legal ambiguities of the surrogate mother arrangement. This legislation should regulate the parties that enter into such an arrangement and the rights and responsibilities of these parties.
1 An example of this new concept is in vitro fertilization. See Hubbard, Test-Tube Babies: Solution or Problem, 82 Tech. Rev. 10 (1980)Google Scholar.
2 See Seligman, New Science of Birth, Newsweek, Nov. 15, 1976, at 55. Seligman discusses the increasing role of the father in helping the mother in childbirth and in parenthood.
3 For a short summary of recent changes in the family, see Yorburg, Recent Trends in American Family Life, 106 Intellect 348 (1978)Google Scholar.
4 Whether or not the couple need be married is discussed herein; see note 124 infra.
5 There may be variations on this theme. See, e.g., Cusine, Womb-Leasing: Some Legal Implications, 128 New L.J. 824 (1978)Google Scholar, which discusses the process of embryo transfer in which sperm of H and an egg of W are implanted in S. Embryo transfer is quite different from the surrogate mother arrangement and therefore may implicate different legal problems: embryo transfer is experimental and the host mother who carries the child is not the genetic mother. See generally Humphreys, Lawmaking and Science: A Practical Look at in vitro Fertilization and Embryo Transfer, 1979 DET. C.L, Rev. 429, 433-434.
6 Many of these reasons are identical to those that cause couples to turn to artificial insemination when H is sterile or impotent. See De Stoop, Human Artificial Insemination and the Law in Australia, 50 Austl. L.J. 298 (1976)Google Scholar.
7 For a discussion of a number of physical disorders that can lead to an inability to conceive, see Kaufman, S., New Hope for the Childless Couple 23 (1970)Google Scholar.
8 For a discussion of the high costs of adoption, see L. McTagcart, The Baby Brokers
9 See Podolski, Abolishing Baby Buying: Limiting Independent Adoption Placement, 9 Fam. L.Q. 547 (1975)Google Scholar.
10 For example, the incidence of Down's syndrome increases with the advancing age of the mother. See Volpe, E., Human Heredity and Birth Defects 76 (1971)Google Scholar.
11 See notes 125-26 infra and accompanying text.
12 Erickson, Contracts to Bear a Child, 66 Cal. L. Rev. 611, 611 n.1 (1978).
13 Fleming, New Frontiers in Conception, N.Y. Times, July 20, 1980, 6 (Magazine), at 24.
14 Lane, Hiring a Mother to Bear Your Baby, Boston Globe, May 30, 1980, at 29, col. 3. Even in those arrangements where no money is paid to the surrogate mother as compensation for her labor, the contract should not be viewed as merely a gratuitous promise, and therefore unenforceable. See, e.g., Kirksey v. Kirksey, 8 Ala. 131 (1845) (brother-in-law's promise to give plaintiff a place to live was unenforceable because she had not incurred a detriment). Even if the obligations assumed by H and W do not constitute adequate consideration, the detriment suffered by S in relying on their promises to pay and take the child would nonetheless cause the courts to imply a legally binding obligation. See Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (1891) (plaintiff's act of foregoing drinking and using tobacco was sufficient detriment to obligate defendant to pay the promised 5,000).
15 See Turano, Black-Market Adoptions, 22 Cath. Law. 48 (1976)Google Scholar.
16 See note 14 supra. There is also presently a great demand for in vitro fertilization. See also Humphreys, supra note 5, at 434. Perhaps it is not unreasonable to conclude that, as with in vitro fertilization, the demand for the surrogate mother arrangement will even further increase as it becomes more well known.
17 Among these are issues related to enforceability (see notes 18-19 and 44-45 infra and accompanying text) and liability of third parties (see notes 81-99 infra and accompanying text).
18 Courts have, for example, struck down gambling contracts, Richter v. Empire Trust Co., 20 F. Supp. 289 (S.D.N.Y. 1937), and contracts which induce the breach of an official duty, Dougherty v. Aleutian Homes, Inc., 210 F. Supp. 658 (D. Or. 1962); Grimes v. Allen, 93 Cal. App. 2d 653, 209 P.2d 651 (1949).
19 See H. Hart and A. Sachs, The Legal Process: Basic Problems in the Making and Application of Law 251-56 (tent. ed. 1958).
20 In addition to legal issues, artificial insemination raises possible religious objections. Weinstock, Artificial InseminationThe Problem and the Solution, 5 Fam. L.Q. 369, 373 (1975)Google Scholar. Discussion of such objections is beyond the scope of this Note.
21 For example, S, H and W could be held criminally liable for baby selling. See Doe v. Kelly, No. 78-815-531 (Cir. Ct., Wayne County, Mich., Jan. 28, 1980), aff'd No. 50380 (Ct. App., May 5, 1981).
22 As a general rule illegal contracts are void. J. Calamari & J. Perillo, The Law of Contracts 22-2-22-14 (2nd ed. 1977).
23 In contrast, Erickson, supra note 12, concludes that the surrogate mother arrangement is illegal and proposes legislation. Erickson's finding of illegality is based on California's adoption and parentage laws and on policy considerations which prohibit the payment of a fee for the adoption of a child. This reasoning does not take three factors into account. First, not all surrogate mother arrangements involve a fee. Second, current statutes may not apply (see notes 36-41 infra and accompanying text) and adoption is thus arguably not, even necessary (see notes 29-31 infra and accompanying text). Third, while Erickson's argument that public policy abhors the treatment of children as chattel is no doubt true, the surrogate mother arrangement treats the child as the child of H and W, and not as chattel. In addition, Kentucky Attorney General Beshear issued an advisory opinion declaring such contracts illegal. He predicted Kentucky courts would not uphold the receipt of a fee. [1981] 7 Fam. L. Rep. (BNA) 2246.
24 Certain jurisdictions may have other special statutes covering this arrangement or approaching it from a unique angle, but this Note was unable to uncover any such statute.
25 Carey v. Population Servs. Int'l, 431 U.S. 678, 687 (1977) (state statute prohibiting sale of contraceptives to minors held unconstitutional); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (state statute prohibiting the sale of contraceptives to unmarried persons held unconstitutional). In Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), the Court observed that the right to reproduce is one of the basic civil rights of Man. It held unconstitutional an Oklahoma statute that provided for the sterilization of habitual criminals.
26 Carey v. Population Servs. Int'l, 431 U.S. at 687 (1977); Eisenstadt v. Baird, 405 U.S. at 453(1972).
27 See, e.g., Ill. Ann. Stat. ch. 38, 81-26 (Smith-Hurd Supp. 1981):
No person shall use (or sell) any fetus or premature infant aborted alive for any type of scientific research, laboratory or other kind of experimentation either prior to or subsequent to any abortion procedure except as necessary to protect or preserve the life and health of such premature infant aborted alive.
For a comprehensive review, see Flannery, et al., Test Tube Babies: Legal Issues Raised by In Vitro Fertilization, 67 Geo. L.J. 1295, n.31 at 1299 (1979).
28 At least one source traces the first successfully performed artificial insemination to 1790; Shaman, Legal Aspects of Artificial insemination, 18 J. Fam. L. 331, n.1 at 331 (1980).
29 Adoption is defined as the legal process pusuant to state statute in which a child's legal rights and duties toward his natural parents are terminated and similar rights and duties toward his adoptive parents are substituted. To take into one's family the child of another and give him or her the rights, privileges and duties of a child and heir. Black's Law Dictionary 45 (5th ed. 1979).
30 Since S and H are the natural parents, their custodial rights will predominate. For a discussion of the need for legislation to clarify custodial rights, see notes 130-132 infra and accompanying text.
31 Statutes may create a presumption that the child is the legitimate child of S and her husband, suggesting that the formalities of adoption might be required. However, this presumption can be rebutted. See note 84 infra.
32 See Podolski, supra note 9, n.19 at 553. See also Ariz. Rev. Stat. Ann. 8-105 (West Supp. 1980); Cal. Civ. Code 224a (West Supp. 1981); Colo. Rev. Stat. 19-4T108 (1978); Conn. Gen. Stat. Ann. 17-49a (West Supp. 1981); Del. Code Ann. tit. 13, 904 (1975); Ind. Code Ann. 31-3-1-3 (West 1979); Ky. Rev. Stat. 199.473 (Supp. 1980); Minn. Stat. Ann. 259.22 (West Supp. 1981); Mont. Rev. Codes Ann. 53-4-402 (1979); Nev. Rev. Stat. 127.310 (1979); N.H. Rev. Stat. Ann. 170-B: 8 (1978); N.J. Stat. Ann. 2A: 96-6 (West 1969); N.M. Stat. Ann. 40-7-19 (1978); Ohio Rev. Code Ann. 5103.16 (Page 1981); Or. Rev. Stat. 418.300 (1979); R.I. Gen. Laws 15-7-1 (Supp. 1980); S.D. Codified Laws Ann. 26-6-8 (1976); Tenn. Code Ann. 36-135 (1977); Wis. Stat. Ann. 48.60 (1) (West 1979).
33 Blood relatives include both parents as well as other relations. See, e.g., Ariz. Rev. Stat. Ann. 8-105(N) (West Supp. 1980); Cal. Civ. Code 224q (West Supp. 1981); Conn. Gen. Stat. Ann. 17-49a (West Supp. 1981); Del. Code Ann. tit. 13, 904(2) (1975); Minn. Stat. Ann. 259.22(2)(c) (West Supp. 1981); N.M. Stat. Ann. 40-7-19B (1978); Ohio Rev. Code Ann. 5103.16 (1981); OR. Rev. Stat. 418.300 (1979); R.I. Gen. Laws 15-7-1 (Supp. 1980); S.D. Codified Laws 26-6-8 (1976); Wis. Stat. Ann. 48.60 (2)(a) (West 1979).
34 See H. Hart and A. Sachs, supra note 19 at 1153.
35 Interim support refers to the direct medical costs of the pregnant woman in addition to some maintenance expenses during the latter part of pregnancy. Landes, and Posner, The Economics of the Baby Shortage, 7 J. Legal Stud. 323, 328 (1977)Google Scholar. See. e.g., Ky. Rev. Stat. 199.590 (2)(1978): No person, agency or institution not licensed by the department may charge a fee or accept remuneration for the procurement of any child for adoption purposes. See also, Ariz. Rev. Stat. Ann. 8-126(c) (1974); Cal. Penal Code 273 (a) (West 1970); Colo. Rev. Stat. 19-4-115 (1978); Del. Code Ann. tit. 13, 928 (Supp. 1980); Fla. Stat. Ann. 72.40 (West 1964); Idaho Code 18-1511 (1979); Ill. Ann. Stat. ch. 40, 1526, 1701, 1702 (Smith-Hurd Supp. 1980); Iowa Code Ann. 600.9 (West Supp. 1981); Mass. Gen. Laws Ann. ch. 210 11A (West 1981); Mich. Stat. Ann. 27.3178 (555.54) (1980); Nev. Rev. Stat. 127.290 (1979); N.C. Gen. Stat. 48-37 (1976); Okla. Stat. Ann. tit. 21, 866 (West Supp. 1980); Tenn. Code Ann. 36-136 (1977); Utah Code Ann. 76-7-203 (1978).
36 See notes 29-31 supra and accompanying text.
37 For an analysis of restricting fees to discourage the abuse and exploitation of independent adoptions, see Meezan, W., Katz, S., & Russo, E., Adoption without Agencies 182 (1978)Google Scholar.
38 No. 78-815-531 (Cir. Ct., Wayne County, Mich., Jan. 28, 1980) reported in [1980] 6 Fam. L. Rep. (BNA) 3011, aff'd No. 50380 (Ct. App. May 5, 1981).
39 Id. at 3013.
40 See generally Erickson, supra note 12; Turano, supra note 15; Landes and Posner, supra note 35.
41 Perhaps in the future a woman could be pressured into becoming a surrogate mother. However, this is highly unlikely given the contractual negotiations that occur among S, H and W and the screening procedures that should occur to ensure S's healthy psychological state. In addition, statutes can deal with these evils should they come into being.
42 For a discussion of the distinction between the sale of a child and a contract to bear a child, see Erickson, supra note 12, at 613. Opponents of the surrogate mother procedure may argue that the state can prohibit socially unacceptable forms of services, such as prostitution or other private consensual acts. See Doe v. Commonwealth's Attorney, 425 U.S. 901 (1976) (state can prohibit consensual acts of sodomy).
43 Although the Supreme Court has taken the stance that the right to procreate is fundamental, see, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678 (1977); Skinner v. Oklahoma, 316 U.S. 535 (1942), it is unclear whether this right extends to the surrogate mother arrangement. Since this arrangement is different than the typical case of childbearing it may not fall completely within the realm of these decisions.
44 See note 18 supra.
45 The remedy at law (i.e., monetary damages) must be inadequate before specific performance will be granted. See H. McClintock, Handbook of the Principles of Equity 60 (2nd ed. 1948).
46 This Note contends that S need not be married and discusses the role of S's husband, if she is married, only with respect to her husband's role in screening. If S's husband wholeheartedly consents to the procedure then their marriage should not present a problem. In the absence of consent it would be better for all the parties if S were not married so as to prevent additional complications. The final determination, however, is not a legal one. Rather, the determination will be made by the parties or by a medical screener, if legislation proposed in this Note is passed. See notes 114-134 infra and accompanying text.
47 See note 84 infra.
48 Silvoso, Artificial Insemination: A Legislative Remedy, 3 W. St. U.L. Rev. 48, 64 (1975)Google Scholar, discusses relinquishment of custody rights in the context of artificial insemination cases.
49 Roe v. Wade, 410 U.S. 113 (1973). The Court held that in the first trimester the abortion decision must be left to the medical judgment of the pregnant woman's attending physician. In the stage subsequent to the approximate end of the first trimester, the state may regulate the abortion procedure in ways that are reasonably related to maternal health. After viability the state may regulate or proscribe abortions except where necessary for the preservation of the mother's life or health. Id. at 164. Tuchler, Man-Made Man and the Law, 22 St. Louis U.L. Rev. 310, 316 (1978)Google Scholar suggests that not only will S's right to decide to abort be protected by a privacy right, but that it also may be protected by the prohibition against involuntary servitude in the thirteenth amendment to the United States Constitution.
50 For instance, the Court held in H.L. v. Matheson, 101 S. Ct. 1164, 1166 (1981) that parental notification may be required before a minor can have an abortion in order to serve the important state interest of family integrity.
51 Planned Parenthood of Missouri v. Danforth, 428 U.S. 52,69 (1976).
52 For example, the right to a jury trial may be waived. Northwest Airlines, Inc. v. Air Line Pilots Ass'n, 373 F.2d 136 (8th Cir. 1967) (right to trial by jury in suits at common law may be waived); State v. Jelks; 105 Ariz. 175, 461 P.2d 473 (1969) (right to trial by jury in criminal cases may be waived where accused is aware of the right and voluntarily relinquishes it).
53 For example, the freedom of religion may be waived but the waiver is not irrevocable. See Thomas v. Ind. Employment Security Div., 101 S. Ct. 1425 (1981) (waiver of religious freedom subsequently can be revoked in employment situation); Sherbert v. Verner, 374 U.S. 398 (1963).
54 Erickson, supra note 12, at 620 suggests that [a] remedy in damages should adequately protect the contract parents. However, while this may be true in classical theory with respect to monetary harm, this does not take into account emotional harm which is likely to be the more significant damage.
55 Meyer v. Nottger, 241 N.W.2d 911, 918 (Iowa 1976) (action for intentional infliction of emotional distress was allowed because it included allegation of outrageous conduct by the defendant); Samms v. Eccles, 11 Utah 2d 289, 293, 358 P.2d 344, 347 (1961) (an action may be based upon intentional conduct which any reasonable person would have known would cause emotional distress).
56 For example, the cause of action was expressly denied in Wallace v. Shoreham Hotel Corp., 49 A.2d 81, 84 (D.C. Mun. Ct. App. 1946) (The law does not, and doubtless should not, impose a general duty of care to avoid causing mental distress. quoted in Clark v. Associated Retail Credit Men, 105 F.2d 62, 66 (D.C. Cir. 1939)). See also, W. Prosser, The Law of Torts 12 (4th ed. 1971).
57 The case law does not clearly support or reject a wrongful death action for a fetus. For cases supporting such a cause of action, see, e.g., Simmons v. Howard Univ., 323 F. Supp. 529 (D.D.C. 1971); Eich v. Gulf Shores, 293 Ala. 95, 300 So. 2d 354 (1974). For cases dismissing the cause of action, see, e.g., Kilmer v. Hicks, 22 Ariz. App. 552, 529 P.2d 706 (1974); Olejniczak v. Whitten, 605 S.W.2d 142 (Mo. App. 1980).
58 In addition, the child may be able to sue S for personal harm suffered due to S's failure to provide proper care during pregnancy. Such suits, however, would be highly speculative, and perhaps totally precluded, if the identity of S is not revealed to the child. See notes 108-11 infra and accompanying text. However, if the case does arise, the child could sue for a breach of promise to provide adequate care to the fetus during pregnancy under a third party beneficiary theory. A third party beneficiary is one for whose benefit two other parties make a contract. See generally, J. Calamari & J. Perillo, supra note 22, at 17-117-11; for a discussion of third party beneficiaries in this context see Tuchler, supra note 49, at 317. The child is an intended third party beneficiary to the contract between S, H and W. Therefore in order to recover, the child would have to show that S's engaging in potentially harmful activity constitutes a breach and that, in turn, this activity caused the defect.
The child might also attempt to sue under a tort theory of negligence by demonstrating that S owed a duty of care, breached that duty and that harm resulted. See Restatement (Second) of Torts 281 (1965). The doctrine of intrafamilial immunity, however, could be interposed as a defense to any suit by the child against S, the genetic mother. For a definition of the doctrine of intrafamilial immunity, see Hewlett v. George, Ex'r of Ragsdale, 68 Miss. 703, 711, 9 So. 885, 887 (1891) (So long as the parent is under an obligation to care for, guide or control and the child is under a reciprocal obligation to aid and comfort and obey, no such action as this can be maintained). However, at least one commentator suggests that even genetic parents should be liable for prenatal injuries if their actions fall below the standard for reasonably prudent parents. Simon, Parental Liability for Prenatal Injury, 14 Colum. J.L. & Soc. Prob. 47 (1978)Google Scholar. Arguably, this immunity does not even apply since the doctrine of intrafamilial immunity arose to protect family harmony. See Chaffin v. Chaffin, 239 Or. 374, 381, 397 P.2d 771, 774 (1964) (wide discretion with respect to support and discipline should be allowed to prevent discord). Realistically, however, suits by the child against the surrogate mother would be unlikely to succeed due to their speculative nature.
59 While it may be difficult to ascertain what care the reasonable pregnant woman would receive, the test of what is customary is often used to determine whether behavior falls below an acceptable standard. Denning Warehouse Co. v. Widener, 172 F.2d 910, 913 (10th Cir. 1949) (custom tends to show what a reasonably prudent man would do under similar circumstances); Helweg v. Chesapeake & Potomac Telephone Co., 110 F.2d 546, 548 (D.C. Cir. 1940) (evidence of customary use, while not conclusive, is relevant). See generally Morris, Custom and Negligence, 42 Colum. L. Rev. 1147 (1942)Google Scholar.
60 For a discussion of this problem in regard to in vitro fertilization, see Cohen, The Brave New Baby and the Law: Fashioning Remedies for the Victims of In Vitro Fertilization, 4 Am. J.L. & Med. 319, 333 (1978)Google Scholar.
61 See Brown, Ethanol Embryotoxicity: Direct Effects on Mammalian Embryos In Vitro, 206 Science 573 (Nov. 2, 1979), for a discussion of the toxic effects of alcohol on the fetus. See Caffeine Watching, N.Y. Times, June 1, 1978, at 41, col. 3, which discusses effects of caffeine on the fetus, such as cleft palate and heart trouble.
62 Curtice Bros. Co. v. Catts, 72 N.J. Eq. 831, 66 A. 935 (1907) (specific performance granted because damages could not be adequately measured).
63 Annot., 90 Am. St. Rep. 634, 648 (1903) ([I]f a contract stipulates for special, unique, or extraordinary personal services or acts, or where the services to be rendered are purely intellectual, or are peculiar or individual in their character, the court will grant an injunction in aid of specific performance by restraining the breach of the negative covenant.). The commentator goes on to say, however, that this standard may be inadequate since it is highly discretionary. See Pusey v. Pusey, 1 Vern. 273 (1684). ,
64 See note 62 supra.
65 Liquidated damages clauses are used, in certain conditions, to determine in advance what damages will be assessed in the event of a breach. See generally Macneil, Power of Contract and Agreed Remedies, 47 Cornell L.Q. 495 (1962)Google Scholar.
66 Generally, a clause will be considered a penalty if the sum stipulated is not a reasonable pre-estimate of the probable loss. See C. McCormick, Cases and Materials on Damages 148-149 (2nd ed. 1952).
67 See, e.g., Ex parte Buck, 291 Ala. 689, 693, 287 So. 2d 441, 445 (1973) ([t]he equity courts in this state are always open for the protection of minors and any pleading which shows on its face that the welfare of an infant requires an order with respect to its custody or support is sufficient to invoke this jurisdiction); Gardner v. Rothman, 370 Mass. 79, 80, 345 N.E.2d 370, 372 (1976) (jurisdiction of equity courts extends to the persons and estates of infants, and is not restricted to legitimate children); Rabuse v. Rabuse, 304 Minn. 460, 463, 231 N.W.2d 493, 495 (1975) (the general equitable power [to protect infants] obviously includes the right to make provisions for the custody and maintenance of minor children).
68 Morris v. Peckham, 51 Conn. 128 (1883) (court did not order specific performance in a partnership contract since it held that it had no power to enforce the decree); De Rivafinoli v. Corsetti, 4 Paige Ch. 264 (N.Y. 1883) (court did not order a singer's specific performance since it held that it would be too difficult to determine whether or not defendant had adequately performed); Lumley v. Wagner, 42 Eng. Rep. 687 (1852) (court indirectly enforced contract by restraining defendant from working for competitor).
69 A case was in the California courts in which a surrogate mother refused to give up the child. Newsweek, Apr. 6, 1981, at 83. The surrogate mother won an out-of-court settlement permitting her to keep custody of the child. Morrow, Surrogate Mother Gets Custody oj Fought-Over Child, L.A. Daily J., June 5, 1981, at 1, col. 2.
70 See Moore, Wrongful BirthThe Problem of Damage Computation, 48 U.M.K.C.L. Rev. 1 (1979)Google Scholar. An analogy can be made to determining damages in the wrongful birth I cases, where contraception fails due to the doctor's alleged negligence. Moore suggests that damages with respect to, for example, child-rearing, are speculative.
71 Dockery v. Hamner, 281 Ala. 343, 345, 202 So. 2d 550, 551 (1967) (The relationship of parent and child is confidential.).
72 See generally Comment, Restitution: Concept and Terms, 19 Hastings L.J. 1167 (1968)Google Scholar.
73 Humphreys, supra note 5, at 449 n.106 suggests that this may cause a change in health insurance rates and types of coverages.
74 Gomez v. Perez, 409 U.S. 535 (1973)(in suit by unwed mother against father for child support, Court held that the father must pay support where state statute required support for legitimate children).
75 There is a general duty to mitigate damages. This duty requires those injured to take steps to prevent further accumulation of losses after breach by the other party is confirmed. Clark v. Marsiglia, 1 Denio 317 (N.Y. 1845). The duty to mitigate only requires that the injured party take reasonable steps to mitigate damages. It would be unreasonable to require S to put the child up for adoption in order to mitigate damages. See J. Calamari & J. Perillo, supra note 22, at 14-15.
76 See, e.g., Cal. Civ. Code 7005(b) (West Supp. 1981); Colo. Rev. Stat. 19-6-106 (2) (1978). The donor also will most likely remain anonymous.
77 If S gives birth to twins, H and W are obligated to accept both children and this should be clearly stated in the contract. One can decrease the chances of twins being born by screening out those potential surrogate mothers whose genetic history shows a propensity toward having twins.
78 Questions of who is responsible for putting the child up for adoption can be resolved by assuming that the child is the legitimate child of H and W, thereby placing any financial burden for placing the child for adoption on H and W, see notes 129-31 infra and accompanying text.
79 Possibly through prenatal testing, S, H and W could discover that the child will be born deformed. H and W may want S to have an abortion at this point. However, H and W may not be able to force S to abort the fetus and remain contractually obligated to accept the baby. See notes 49-51 supra and accompanying text.
80 See notes 126-28 infra and accompanying text.
81 See note 46 supra.
82 See notes 100-07 infra and accompanying text.
83 S does not need her husband's permission, but this would facilitate the arrangement.
84 See, e.g., Ky. Rev. Stat. 406.011 (1980); Mich. Comp. Laws Ann. 700.111(2),(3) (1980). See Ray v. Bryant, 411 F.2d 1204 (5th Cir. 1969); Pyeatte v. Pyeatte, 21 Ariz. App. 448, 520 P.2d 542 (1974) (presumption of legitimacy exists in favor of children born in wedlock). However, the presumption is rebuttable. See Comm. v. Pizzimente, 1 Mass. App. 668, 306 N.E.2d 279 (1974) (married woman's testimony, standing alone, is sufficient to rebut presumption of legitimacy, if believed); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) (presumption may be rebutted by clear and convincing evidence); see also Clark, H., The Law of Domestic Relations in the United States 172 (1968)Google Scholar.
85 See, e.g., D.C. Code Ann. 16-904(8) (1973); IDAHO Code 32-603 (Supp. 1980); ME. Rev. Stat. Ann. tit. 19, 691 (1981), which accept adultery as grounds for divorce.
86 Podolski, supra note 9, at 551 states that with respect to private placement for adoption, individuals who act as intermediaries between adopting parents and the natural mother are outside the control of any law. While an analogy may be drawn between the intermediary in an adoption proceeding and the physician's or lawyer's role in the surrogate proceeding, it would seem erroneous to assume that the physician or lawyer is outside of the law. Professionals are normally subject to liability both under the criminal law as well as by their own standards. See Kinney, Legal Issues of the New Reproductive Technologies, 52 Cal. St. Bar. J. 514 (1977)Google Scholar.
87 For. example, problems of incompatible Rh factors. Rh Isoimmunization and Ervthroblastosis Fetalis (A. Charles and E. Friedman eds. 1969).
88 See De Stoop, supra note 6, at 305 who suggests setting up an independent body of experts to consult with the inseminating physician.
89 Curie-Cohen, Luttreel, & Shapiro, Current Practice of Artificial Insemination by Donor in the United States, 300 New Eng. J. Med. 585 (1979)Google Scholar, suggests that negligent screening or artificial insemination donors may be quite prevalent, particularly with respect to screening for genetic diseases or consanguineous matings.
90 See notes 60-61 supra and accompanying text.
91 See Wilkinson v. Vesey, 110 R.I. 606, 627, 295 A.2d. 676, 689 (1972) (Physician held negligent for not adequately disclosing all the known material risks of treatment); See Fogarty-Brabender, Wrongful Birth: Should Liability Be Imposed upon a Physician Who Fails to Warn Parents of the Risks of Defects in Their Unborn Children?, 14 Gonzaga L. Rev. 891 (1979)Google Scholar for a discussion of physician's liability for failure to inform parents of possible genetic defects.
92 Shaman, supra note 28, at 347 suggests that a strict liability cause of action may be based upon the same theory of liability used in cases of defective blood transfusions. This Note concludes that it is unfair and extreme to place a physician in the position of being strictly liable for a defect that was never within his or her control. A negligence theory seems more appropriate, for the physician is not engaged in the type of activity that would normally constitute an ultrahazardous risk to other persons. For a discussion on the limits of strict liability, see W. Prosser supra note 56, at 75-81.
93 See Fogarty-Brabender, supra note 91.
94 Wrongful life cases are based upon the failure of sterilization procedures. When a child is born to a sterilized couple, the couple has sometimes attempted to sue the doctor for negligence. See, e.g., Chessin, Park v.: The Continuing Judicial Development of the Theory of Wrongful Life, 4 Am. J.L. & Med. 211, 213-14 (1978)Google Scholar; Wrongful Conception, Measuring the Damages Incurred by the Parents of an Unplanned Child, 28 De Paul L. Rev. 249 (1978)Google Scholar.
95 Podolski, supra note 9, at 552-53 points out ethical and professional problems of the lawyer's role in adoption which can be analogized to the surrogate mother arrangement. The major problem stems from the question of exactly who the attorney represents, S or H and W. As Podolski points out, the Code of Professional Responsibility restricts the representation of more than one client in the same transaction; ABA Code of Professional Responsibility, DR 5-105 (A) and (B). The Code does allow, however, dual representation where the interests of the clients would not be jeopardized and the parties consent. Id. at DR 5-105 (C). The formulation of the contract may imply that one attorney should represent the interest of S and another attorney represent the interest of H and W.
96 However, the lawyer may be liable for malpractice if he or she negligently drafted the contract.
97 See, e.g., Cal. Penal Code § 31 et seq. (1970).
98 ABA Code of Professional Responsibility, EC 7-1.
99 Id. at EC 7-4.6.
100 Levy v. La., 391 U.S. 68, 70 (1968) (a state statute was intended to "discourage bringing children into the world out of wedlock." The Court held that the law, which did not allow illegitimate children to inherit from their mother in a wrongful death action, was unconstitutional). Despite the law's unconstitutionality, the fact that a legislature could enact such a law is evidence of the societal stigma attached to illegitimacy.
101 Labine v. Vincent, 401 U.S. 532 (1971) (statute upheld that barred an illegitimate child from sharing equally with legitimates in the estate of their father who had publicly acknowledged the child, but who died without a will). But see Trimble v. Gordon, 430 U.S. 762 (1977) (statute held unconstitutional under a fourteenth amendment equal protection challenge. The state had allowed illegitimate children to inherit by intestate succession only from their mothers).
102 See note 84 supra.
103 See Strnad v. Strnad, 190 Misc. 786, 78 N.Y.S.2d 390 (Sup. Ct. 1948) (where wife was artificially inseminated with consent of husband, child held legitimate); In re Adoption of Anonymous, 74 Misc. 2d 99, 345 N.Y.S.2d 430 (SUrr. Ct. 1973) (child born after a married woman, with the consent of her husband, was artificially inseminated by semen of third party donor held to be legitimate); People v. Sorenson, 68 Cal. 2d 280, 437 P.2d 495, 66 Cal. Rptr. 7 (1968) (defendant was held the lawful father of child conceived through heterologous artificial insemination, pursuant to agreement between defendant and his wife); But see Gursky v. Gursky, 39 Misc. 2d 1083, 242 N.Y.S.2d 406 (Sup. Ct. 1963) (child conceived by means of artificial insemination of a married woman, with her husband's consent, by semen contributed by a donor other than the husband is not the legitimate issue of the husband).
104 Alaska Stat. 20.20.010 (1975); ARK. Stat. Ann. 61-141(c) (1971); Cal. Civ. Code 7005 (West Supp. 1979); Colo. Rev. Stat. 19-6-106(1) (1977); Conn. Gen. Stat. 45-69(f) (West Supp. .1981); Fla. Stat. Ann. 742.11 (West Supp. 1981); Ga. Code Ann. 74-101.1 (1981); Kan. Stat. Ann. 23-129 (1977); La. Civ. Code Ann. art. 188 (West Supp. 1978); Md. Est. & Trusts Code Ann. l-206(b) (1975); Mich. Comp. Laws Ann. 333,2824 (1980); Mont. Rev. Codes Ann. 61-306 (Supp. 1979); N.Y. Dom. Rel. Law 73 (McKinney 1977); N.C. Gen. Stat. 49A-1 (1976); Okla. Stat. tit. 10, 552 (West Supp. 1978-79); Ore. Rev. Stat. 109.243 (1977); Tenn. Code Ann. 53-446 (Supp. 1980); Tex. Fam. Code Ann. tit. 2 12.03 (Vernon, 1977); Va. Code 64.1-7.1 (Supp. 1978); Wash. Rev. Code Ann. 26.26.050(1) (Supp. 1978); Wyo. Stat. 14-2-103(a)(1978).
105 See, e.g., Cal. Civ. Code .7005(b) (West Supp. 1981); Colo. Rev. Stat. 19-6-106(2) (1977).
106 See Biskind, Legitimacy of Children Born by Artificial Insemination, 5 J. Fam. L. 39, 43 (1965)Google Scholar. See notes 103-04 supra.
107 People v. Sorenson, 68 Cal. 2d at 288, 437 P.2d at 501, 66 Cal. Rptr. at 13 (public policy favors legitimization, and no valid purpose is served by stigmatizing an artificially conceived child as illegitimate).
108 To date, several states have enacted statutes that state that artificial insemination files must remain confidential unless there is a court order showing good cause to reveal donor's identity. See Shaman, supra note 28, at 341. One example of a showing of good cause is the prevention of incestuous marriages where the possibility of siblings marrying one another exists. While similar, semen donors in the typical artificial insemination case and surrogate mothers are in different positions with respect to incest. Even assuming that the number of women who will become surrogates is limited, increasing the possibility of incest, considering the nine months that it takes to produce one child versus the number of donations that a donor could produce, the likelihood of two children having the same mother is much lower by comparison. See Kelly, Kinship, Incest and the Dictates of Law, 14 Am. J. Juris. 69 (1969)Google Scholar; Weinstock, Artificial InseminationThe Problems and the Solution; 5 Fam. L.Q. 369, 395 (1971)Google Scholar.
109 Due to the fact that this issue is widely discussed in relation to adoption, this Note will only briefly discuss the issue. See Carter, Confidentiality of Adoption Records: An Examination, 52 Tul. L. Rev. 817 (1978)Google Scholar; Green, Do the Adopted Have a Right to Know?, 1 Fam. Advocate 24 (1979)Google Scholar.
110 See Note, The Adult Adoptee's Constitutional Right to Know his Origins, 48 S. Cal. L. Rev. 1196 (1975)Google Scholar.
111 See Chattman v. Bennett, 57 A.D.2d 618, 393 N.Y.S.2d 768 (1977) (court allowed adopted child access to records of biological parents to obtain medical information, but not access to their identities).
112 In both the adoption situation and the surrogate mother situation, a genetic parent relinquishes the child and most likely wishes to remain anonymous.
113 See notes 133-34 supra and accompanying text.
114 See generally Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978)Google Scholar.
115 The integrity of the family is very important and has found protection in the due process clause of the fourteenth amendment, Meyer v. Nebraska, 262 U.S. 390, 399 (1923), the Equal Protection Clause of the fourteenth amendment, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and the ninth amendment, Griswold v. Conn., 381 U.S. 479, 496 (1965) (Goldberg, J., concurring).
116 Carey v. Population Servs. Int'l, 431 U.S. at 686 (1977) (because there is a fundamental right to bear or beget a child, statutes restricting this right must be based on a compelling state interest).
117 Id. The interest will have to be very strong to be compelling. Very few statutes have withstood this difficult test. The Court in Roe v. Wade, 410 U.S. 113 (1973), for example, suggested that the state has a compelling state interest in the fetus in the third trimester.
118 See note 43 supra.
119 Roe v. Wade, 410 U.S. at 164 (1973). See also notes 50-51 supra and accompanying text.
120 Id. at 154.
121 Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955) (the Court upheld a statute regulating opticians, while exempting all sellers of ready-to-wear glasses, under the theory that a rational relationship existed between an evil and the legislative measure that sought to correct it); Doe v. Commonwealth's Attorney, 403 F. Supp. 1199 (E.D. Va. 1975) aff'd mem., 425 U.S. 901 (1976) (while upholding a law concerning sodomy, the Court held that a state fulfills its burden of proving that it has a legitimate interest in the subject of the statute by showing that the statute is rationally related). This is not to say that states could prohibit the surrogate mother arrangement but rather that states could regulate it.
122 For a review of the best interests of the child standard, see Chambers, Adoption Without Consent, 13 Trial 28 (1977)Google Scholar; See also Hawaii Rev. Stat. 571-63 (1976); Ill. Ann. Stat., ch. 40, 1525 (Smith-Hurd 1980).
123 Roe v. Wade, 410 U.S. at 163 (1973) (the state has a compelling interest in the fetus in the third trimester since at this point the fetus has the capability of meaningful life outside the mother's womb).
124 The bias toward married couples would serve to settle the legal issues without the introduction of a more complex legal situation. It could be argued that restricting the procedure to married couples is a violation of the equal protection clause of the fourteenth amendment, since this would preclude single persons and homosexuals from participating in the procedure. However, rights of privacy with respect to procreation have traditionally been limited to heterosexual married couples. In Griswold v. Conn., 381 U.S. 479 (1965), the Court held that the right to privacy was premised on relationships between partners in traditional marriages, and it invalidated a statute prohibiting the sale of contraceptives. The Court, in Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), held that unmarried individuals should also be able to purchase contraceptives. In Carey v. Population Servs. Int'l, 431 U.S. 678 (1977), the Court appeared to cut away at Eisenstadt by saying that although minors could not be prohibited from purchasing contraceptives, the sole reason for this was that the prohibition would not deter minors from engaging in illicit sexual activities. Therefore the presumption of the right to privacy appears to be in favor of married couples. An equal protection attack on a statute which limits the rights of others to obtain contraceptives seems to be based on the difficulty of enforcing such a statute rather than a condoning of the proscribed behavior.
Homosexuals have not been treated as favorably by the Court with respect to sexual behavior as have minors and unmarried persons. The Court refused to review a sodomy conviction of an adult who had engaged in a consensual homosexual act with another adult. Enslin v. Bean, 436 U.S. 912 (1978). Claims of vagueness against sodomy statutes were rejected in Doe v. Commonwealth's Attorney, 403 F. Supp. 1199 (E.D. Va. 1975) aff'd mem., 425 U.S. 901 (1976) and Wainwright v. Stone, 414 U.S. 21 (per curiam) (1973). Therefore, according to the case law, a statute limiting the procedure to married heterosexual couples should withstand an equal protection attack.
125 For a discussion of various ethical considerations embodied in deeming convenience a motivating factor, see M. Revillard, Legal Aspects of Artificial Insemination and Embryo Transfer in French Domestic Law and Private International Law, reprinted in Law and Ethics of A.I.D. and Embryo Transfer 87 (G. Wolstenholme ed. 1973).
126 For the opposite point of view, see Reilly, P., Genetics, Law and Social Policy 218 (1977)CrossRefGoogle Scholar, which argues that, in the analogous situation of embryo transfer, women should have the legal right to carry a fetus to term for any reason they wish. Reilly condones a convenience rationale at least where the ovum from a woman is fertilized in vitro by the sperm of her husband and subsequent transfer is made to the womb of a surrogate mother.
127 A recent report in the New England Journal of Medicine suggests that semen donors should be carefully checked so that harmful genetic traits are not transmitted. 304 New Eng. J. Med. 755 (1981).
128 Silvoso, supra note 48, at 58.
129 Possibly in the future, surrogate mothers would be selected from a pool of certified surrogate mothers. These women would be certified by the Department of Public Health as being physically sound and free from genetic disabilities. However, the examining doctors and other professionals would still be responsible for extensive screening procedures to double-check the certification procedure.
130 See note 107 supra and accompanying text.
131 See note 84 supra and accompanying text.
132 Once a child is adopted, the adoptive parents have the same rights as would natural ) parents. See, e.g., Lockard v. Lockard, 49 Ohio Op. 163, 102 N.E.2d 747 (1951) (upon divorce of adoptive father and natural mother, adoptive father granted custody since this was in the best interest of the child).
133 See note 110 supra and accompanying text.
134 A similar provision provided in the Uniform Parentage Act is currently in force in some states with respect to artificial insemination, where papers pertaining to the insemination are subject to inspection only upon order of the court for good cause shown. See, e.g., Cal. Civ. Code 7005(a) (West Supp. 1981). See also note 111 supra and accompanying text.
135 For instance, S may be required to visit a physician bimonthly, and forego potentially harmful activities such as strenuous athletics. The legal obligations of S include carrying the child to term and relinquishing it upon birth to H and W.
136 See, e.g., note 135 supra and accompanying text.