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Surrogate Motherhood and the Best Interests of Children

Published online by Cambridge University Press:  28 April 2021

Angela R. Holder
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Extract

Commercial surrogacy presents complex legal issues; the problems that it does not present are those of high tech reproductive medicine. All the new techniques for overcoming infertility, such as in vitro fertilization and the like, are medically complex but—as long as they involve a married couple and no third-party donors—legally simple. Surrogacy is so medically uncomplicated that it can be done without any physician involvement, but it is the most legally complicated means of providing a baby for an infertile couple.

From a time in England when fathers could sell their children into slavery to a day in which the legal system supposedly protects the best interests of the child, the common law increasingly respects the rights of children as individuals with constitutional rights and not as chattels of their parents. If the courts accept commercial surrogacy as a legitimate enterprise, it seems that we have again reverted to the concept of child as chattel.

Type
Ethics
Information
Law, Medicine and Healthcare , Volume 16 , Issue 1-2 , Spring 1988 , pp. 51 - 56
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

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References

See, for varying views on this topic, Robertson, John, “Embryos, Families and Procreative Liberty: The Legal Structure of the New Reproduction,” Southern California Law Review, 59 (1987): 939; O'Brien, Shari, “Commercial Conceptions: A Breeding Ground for Surrogacy,” North Carolina Law Review, 65 (1986): 1271. Most other countries that have considered the matter have banned the commercial aspects of surrogacy. See, e.g., Eaton, Thomas, “Comparative Responses to Surrogate Motherhood,” Nebraska Law Review, 65 (1986): 686. The British, for example, have outlawed commercial surrogacy. Surrogacy Arrangements Act, 1985, 49 Eliz II. See the report of the Warnock Commission, established by Parliament to study a variety of issues involving reproductive technology, fetal rights, and surrogacy. Department of Health and Social Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology, Warnock, Dame Mary, chairman (London: Her Majesty's Stationery Office, July 1984); and Warnock, Mary, “Moral Thinking and Government Policy: The Warnock Committee on Human Embryology,” Millbank Memorial Fund Quarterly, 63 (Summer 1985): 504.Google Scholar
Until the seventh century, English fathers could sell their sons until they were seven years old. Older boys had to consent to being sold. Sir Frederick Pollock, and Frederick Maitland. The History of English Law, 2d ed., (Washington, D.C.: Lawyers' Literary Club, 1959): 436.Google Scholar
Presser, Stephen, “The Historical Background of the American Law of Adoption,” Journal of Family Law, 11 (1972): 143.Google Scholar
Howe, Ruth-Arlene, “Adoption Practice: Issues and Laws, 1958–1983,” Family Law Quarterly, 17 (1983): 173.Google Scholar
See, e.g., Barwin v. Reidy, 307 P.2d 175, N.M. 1957.Google Scholar
See, e.g., A. v. C., 390 S.W.2d 116, Ark. 1965.Google Scholar
See, e.g., Hendrix v. Hunter, 100 S.E.2d 35, Ga. 1959.Google Scholar
In re Baby M, 525 A.2d 1128, 217 N.J. Super. 313 (Superior Ct. Chancery Div. 1987), reversed on appeal, 1988 West Law 6251 (N.J. Supreme Ct., Feb. 3, 1988).Google Scholar
Doe v. Kelley, 2 Human Reproduction Law Rptr 2A1, Circuit Court of Wayne County, Michigan, 1980; also published in Shapiro, Michael Spece, Roy, Bioethics and Law, pp. 537–42.Google Scholar
Doe v. Attorney General, 307 N.W.2d 438, Mich. 1981.Google Scholar
Kentucky Parenting Associates, Inc. v. Commonwealth of Kentucky, 704 S.W.2d 209, 1986.Google Scholar
The contract is appended to the New Jersey Supreme Court opinion in the case.Google Scholar
See, e.g., Nev. Rev. Stats, section 127.070, Mass. Gen. Laws Ann. C. 210, section 2.Google Scholar
See, e.g., Adoption of McKinsie, 275 S.W.2d 365, Mo. 1955; Note, “Revocation of Parental Consent to Adoption: Legal Doctrine and Social Policy,” University of Chicago Law Review, 28 (1961): 564.Google Scholar
See, e.g., Adoption of Ashton, 97 A 2d 368, Pa 1953Google Scholar
Lumley v. Wagner, 1 De Gex, M & G 616, 1852.Google Scholar
Note, “Rumplestiltskin Revisited: The Inalienable Rights of Surrogate Mothers,” Harvard Law Review, 99 (1986): 1936; Cohen, Barbara, “Surrogate Mothers: Whose Baby Is It?,” American Journal of Law & Medicine, 10 (1984): 234.Google Scholar
See Areen, Judithet al., Law, Science and Medicine, at pages 1313–14. See also Newsweek, February 14, 1983, page 76; New York Times January 23, 1983, page 19; New York Times February 7, 1983 page 8; Washington Post Jan 21, 1983, page A11, Washington Post February 3, 1983, page 8.Google Scholar
Levine, Robert J., Ethics and Regulation of Clinical Research, 2d ed. (Baltimore: Urban and Schwarzenberg, 1986), 278.Google Scholar
Warren, Samuel D. Brandeis, Louis D., “The Right of Privacy,” Harvard Law Review, 4 (1890): 193.Google Scholar
Meyer v. Nebraska, 262 U.S. 390, 1923.Google Scholar
Pierce v. Society of Sisters, 268 U.S. 510, 1925.Google Scholar
Skinner v. Oklahoma, 316 U.S. 535, 1942.Google Scholar
See, e.g., Jones v. United States, 357 U.S. 495, 1958; Stanford v. Texas, 379 U.S. 476, 1965; Mapp v. Ohio, 367 U.S. 643, 1961.Google Scholar
Aptheker v. Secretary of State, 378 U.S. 500, 1964.Google Scholar
Griswold v. Connecticut, 381 U.S. 479, 1965.Google Scholar
Roe v. Wade, 410 U.S. 113, 1973.Google Scholar
Loving v. Virginia, 388 U.S. 1, 1967.Google Scholar
Harris v. McRae, 448 U.S. 297, 1980.Google Scholar
Eccles, Matthew, “The Use of in Vitro Fertilization: Is There a Right to Bear or Beget a Child by Any Available Medical Means?” Pepperdine Law Review, 12 (1985), 1033.Google Scholar
PL 93–348, section 214 (d).Google Scholar
In re Baby M, supra note 8, at 70.Google Scholar
I was co-author of the amicus brief, filed on behalf of Odyssey Institute of Connecticut, in which that issue was raised. Prof. Cyril C. Means, Jr., of New York Law School was the primary author of the brief.Google Scholar
Civil Code of Louisiana, Article 35.Google Scholar
In Moss v. Sandefur, 14 Ark. 381 (1854), for example, a man fathered a child by a slave he had rented from her owner. The Supreme Court of Arkansas held that if he wanted his child, he had to buy it from the mother's owner.Google Scholar
Yates v. Keane, #9758 and #9772, slip op., Mich. Circuit Ct., Jan. 21, 1988 (less than two weeks prior to the Baby M decision.)Google Scholar
See, e.g., Barrow v. State, 74 S.E.2d 467, Ga. 1953; Walker v. Walker, 266 So.2d 385, Fla. 1972; State v. Bowen, 498 P.2d 977, Wash. 1972; Commonwealth v. Pewatts, 186 A.2d 408, Pa. 1962; Wilson v. Caswell, 172 N.E. 251, Mass. 1930.Google Scholar
E.g., Holder, Angela, “Client Autonomy and Divorce Negotiations,” Family Law, 17 (1977): 11.Google Scholar
E.g., Esmond v. Liscio 224 A.2d 793, Penh. 1966; Wilson v. Maryland Casualty 105 A.2d 304, Pa. 1954; Glesby v. Hartford Accident and Indemnity Co., 44 P.2d 365, Cal. 1935.Google Scholar