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Surrogate Motherhood is when one women carries to term the fertilized egg of another woman. This procedure is chosen by married couples who can not conceive a child in the "natural way." In some occasions the mother may be able to produce an egg, but has no womb or some other physical problem which prevents her from carrying a child. Whether or not the husband can produce a large amount of sperm is not a problem. Once the egg and sperm are combined in a petri dish fertilization is very likely to occur. The couple will then choose a surrogate mother and make an agreement in which she will carry the baby and release it to the genetic parents after the birth. There are four different kinds of surrogacy arrangements.
Total Surrogacy is when the woman bears a child that has been formed from the gametes of another woman and man and implanted in her body. Partial Surrogacy occurs when the birth mother contributes the ovum and the sperm is introduced by artificial insemination. She is a biological parent of the child. Commercial Surrogacy means a business-like transaction where a fee is charged for the incubation period. Lastly, there is a Non-Commercial Surrogacy in which there is no formal contract or any payment to the birth mother. It is usually an arrangement between close friends or family members. (1 - 10) There is no federal policy on the issue of surrogacy, all fifty states have been left to decide theses issues themselves and create their own policies.
The majority of the states have not yet legislated on this subject. Those states that have taken positions differ greatly from one another, such as California and Virginia, who have taken opposing viewpoints California is the state that is the most sympathetic to the genetic parents. Under California law surrogacy agreements are enforceable and the genetic parents are given all legal parental rights to the child. In Virginia, all legal parental rights to the child are given to the surrogate mother. Who is the legal mother? In the case of Johnson v.
Calvert, in Virginia, the surrogate mother was found to be the legal mother of the child. If this case would have taken place in California, the biological mother is the legal mother. So it really depends on which state the act of surrogacy is taking place to name the legal mother. Are contracts for surrogate motherhood enforceable under American law? Again, it depends on which state the act is taking place.
In California, surrogacy agreements are against the surrogate mother. in Virginia, surrogacy agreements are void and unenforceable. Thus, so far, among those states that have legislated on the issue, many are legislating that these agreements are void and unenforceable in order to try to deter couples and surrogates from entering into agreements. (1 - 2) Surrogate arrangements are made usually through close friends or relatives of the childless couple. However, the practice of commercial surrogacy has increased greatly during the last decade. Many major cities have surrogate agencies that maintain lists of potential surrogate mothers and help match these with couples wanting to have a baby. These agencies are often run by doctors or lawyers and may be found through listings in telephone books.
Commercial surrogate agencies typically charge a fee of $ 10, 000 or more to make the arrangements, which is in addition to the surrogate mother's expenses and fees. These agencies are not legal in all states. Most commercial surrogates are handled through a contract between the prospective parents and the surrogate mother. The contracting couple agrees to pay the surrogate mother's expenses during the pregnancy and delivery plus a fee for the surrogates's services.
The fee can vary between $ 10, 000 and $ 100, 000 per pregnancy. The surrogate mother also agrees to terminate her parental rights to the infant and turn it over to the contracting couple after birth. A vast majority of the surrogacy arrangements proceed without difficulty, occasionally problems arise concerning custody of the child. Since the concept of commercial surrogacy is relatively new, there are few laws and legal precedents concerning these contracts. In some states these contracts are illegal and are considered null and unenforceable by the courts. (1 - 5) Many considerations are to be made in selecting a surrogate mother.
For instance: is the potential surrogate healthy and free from disease, is the surrogate's genetic material compatible with the contracting couple's expectations, is the surrogate candidate emotionally and psychologically stable, does the potential surrogate live in a stable situation which positively influence the pregnancy, and does the potential surrogate have a family history of genetic defects that might adversely affect the baby? In assessing these issues, the prospective parents might benefit from the services of a professional family counselor. Additionally, the assessment of the surrogate mother's qualifications can be aided by both expert medical and psychological evaluations. Another major question that arises is whether or not the commissioning parents have the right to tell surrogate mother how to live?
Can the couple ban smoking, control alcohol, and other substance intake? These issues need to be taken into mind before choosing a surrogate mother and needs to be stated in the contract. (1 - 2) In conclusion, surrogate motherhood raises many legal and ethical dilemmas, especially that of who the legal mother is. Surrogate motherhood dramatically alters society norms and creates many different legal viewpoints. But no matter which legal body is dealing with this issue, they all face the same moral and ethical dilemma: that a child born out of surrogacy has a bond with both the genetic mother and the surrogate mother. The bond between these two women and this child is permanent and cannot be changed by law. The law can only govern which woman has the legal right to raise the child.
Works Cited Centre Points, Volume 1, No. 1, Article # 2, Surrogate Motherhood and its Human Costs, Suzanne Roll Scorsone, Ph. D. ; 1 - 2 Johnson v. Calvert, 5 Cal. 4 th 84, 851 p. 2 d 776, 19 Cal. Rptr. 2 d 494 (1993); 1 - 10
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