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Baby M, the Surrogacy Contract, and the Health Care Professional: Unanswered Questions

Published online by Cambridge University Press:  28 April 2021

Karen H. Rothenberg
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Extract

The Baby M case has forced us to take sides in the public debate over surrogate motherhood. Last year, advocates of this form of noncoital reproduction praised the New Jersey trial court for supporting the freedom to contract for such womb renting services, while critics warned that enforcement of such surrogacy contracts would condone the sale of babies and the exploitation of women as baby factories. In its unanimous opinion, the New Jersey Supreme Court sided with the critics. Based on New Jersey's adoption law and public policy, the court refused to enforce the contract that provided money to a surrogate mother in return for her agreeing to be artificially inseminated with the Semen of another woman's husband, to conceive a child, to carry it to term, and to relinquish her parental rights and surrender her child to the natural father and his wife, regardless of the child's best interests.

Type
Case Review Essay
Information
Law, Medicine and Healthcare , Volume 16 , Issue 1-2 , Spring 1988 , pp. 113 - 120
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

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References

In re Baby M, 14 FLR 2007 (N.J. Sup. Ct. 1988).Google Scholar
13 FLR 2001, 217 N.J. Super. 313 (1987).Google Scholar
Nevertheless, the Supreme Court did defer to the trial court in granting custody to William Stern, the natural father, as serving the best interests of Baby M. It voided the adoption by Elizabeth Stern, however, and restored the parental rights of the natural mother, Mary Beth Whitehead, including her right to visitation.Google Scholar
14 FLR at 2022.Google Scholar
Id.: 2018.Google Scholar
Id.: 2008, emphasis added.Google Scholar
Id.Google Scholar
14 FLR at 2027.Google Scholar
Id.: 2011.Google Scholar
See ACOG Statement of Policy, “Ethical Issues in Surrogate Motherhood,” May 1983; American Medical Associatio, “Report of the Judicial Council, Report B” (1–84) and related documentation; American Fertility Society, “Surrogate Mothers” (Chapter 25 of Ethical Considerations of the New Reproductive Technologies), Fertility and Sterility, 46 (1986): Supp. 1, 62S–68S.Google Scholar
See Letter from Sammons, James H., M.D., AMA executive vice president, to Robert Robinson, chairman, Drafting Committee on “Status of Children of the New Biology” (Sept. 22, 1987).Google Scholar
ACOG Statement of Policy, supra note 10.Google Scholar
See American Fertility Society, “Surrogate Mothers,” supra note 10.Google Scholar
Id.: 67S.Google Scholar
Id.: 68SGoogle Scholar
14 FLR at 2008.Google Scholar
N.J.S.A. 9:3–54. See 14 FLR at 2012, note 4.Google Scholar
14 FLR at 2017.Google Scholar
Id.Google Scholar
See Katz, , “Surrogate Motherhood and the Baby-Selling Laws,” Columbia Journal of Law & Social Problems, (1986): 1, 8–9, n. 34 (lists state statutes prohibiting payment for adoption).Google Scholar
Id. See also Cohen, Friend, , “Legal and Ethical Implications of Surrogate Mother Contracts,” Clinics in Perinatology, 14 (1987): 281, 284.Google Scholar
See Gostin, Larry, “Introduction,” in this issue, for a discussion of these statutes.Google Scholar
The president of Surrogate Parenting Associates, the subject of a protracted legal battle in Kentucky, was a physician who was “paid a fee by the biological father for selection and artificial insemination of the surrogate mother.” See Surrogate Parenting Associates, Inc. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209, 211 (Kentucky 1986); see also Karnezis, , “Criminal Liability of One Arranging for Adoption of Child Through Other Than Licensed Child Placement Agency (‘Baby Broker Acts’),” 3 ALR 4th 468; Montana Dept. of Social & Rehab. Services v. Angel, 577 P.2d 1223 (Montana 1978) (physician enjoined from placing children for adoption without a license, but court did not discuss criminal liability for baby-selling).Google Scholar
14 FLR at 2016.Google Scholar
13 FLR at 2008.Google Scholar
14 FLR at 2016.Google Scholar
Id.: 2017.Google Scholar
Id.: 2016.Google Scholar
Id.: 2017.Google Scholar
Id.: 2028, App. A, “Surrogate Parenting Agreement,” par. 6, emphasis added.Google Scholar
Id.: 2017.Google Scholar
See, e.g., Parker, , “Surrogate Motherhood, Psychiatric Screening and Informed Consent, Baby Selling, and Public Policy,” Bulletin of the American Academy of Psychiatry Law, 12 (1984): 21.Google Scholar
14 FLR at 2017.Google Scholar
Id.: 2016, n. 9.Google Scholar
Id.: 2030, App. B, “Agreement,” par. 10.Google Scholar
Id.: Par. 11.Google Scholar
13 FLR at 2012.Google Scholar
14 FLR at 2029, App. A, par. 17.Google Scholar
Id.: 2017.Google Scholar
For a recent article summarizing such legislative proposals see Note, “Surrogate Motherhood Legislation: A Sensible Starting Point,” Indiana Law Review, 20 (1987): 879, 892–94.Google Scholar
Id.: 894.Google Scholar
See, gen, ., King, , “Reproductive Technologies,” BioLaw, 1 (1986): 113, 115–17, 122–24.Google Scholar
See, e.g., Ga. Code §43-34-42 (1982).Google Scholar
14 FLR at 2028, App. A, par. 3, emphasis added.Google Scholar
Id.: 2029, App. A, par. 13.Google Scholar
13 FLR at 2009.Google Scholar
14 FLR at 2028, App. A, par. 10.Google Scholar
Id.Google Scholar
Id.: 2029, App. A, par. 13.Google Scholar
13 FLR at 2019.Google Scholar
410 U.S. 113 (1973).Google Scholar
13 FLR at 2019.Google Scholar
14 FLR at 2029, App. A, par.Google Scholar
One might find this analogous to the situation that led to the distinction between the duties of “treating” and “examining” physicians in some jurisdictions. See, e.g., Ahnert v. Wildman, 376 N.E.2d 1182 (Ind. App. 1978).Google Scholar
14 FLR at 2029, App. A, par. 15.Google Scholar
See ACOG Statement of Policy, supra note 10 and accompanying text.Google Scholar
14 FLR at 2028, App. A, par. 4(c)(1).Google Scholar
Id.: 2009.Google Scholar
Id.: 2028, App. A, par. 7.Google Scholar
Id.: 2009.Google Scholar
New York Times, Jan. 23, 1983, sec. 1, p. 19. In fact, it was this case that may have motivated the AMA and ACOG to first address the issue.Google Scholar
See, e.g., “Model Human Reproductive Technologies and Surrogacy Act,” Iowa Law Review, 72 (1987): 943, 960–62.Google Scholar
See, e.g., Draft Legislation of the National Commissioners on Uniform State Laws, “Status of Children of the New Biology,” Surrogacy Provision (1987).Google Scholar
See Areen, , “Handicapped Child Becomes ‘Damaged Goods’,” New Jersey Law Journal, 21 (Feb. 18, 1988): 25, 26; Krimmel, , “The Case Against Surrogate Parenting,” Hastings Center Report, 35 (Oct. 1983).Google Scholar
New England Journal of Medicine, 317 (Nov. 19, 1987): 1351; see also Areen, , supra note 64.Google Scholar