Waldlaw Blog

Friday, January 15, 2010

A Tough Month for Surrogacy

December was a bruising month for surrogacy. Two cases made national headlines, both of which involve courts and broken promises and abundant heartbreak. And both of which, surprisingly, involve "gestational surrogacy" -- the type of surrogacy considered "safest" by surrogacy agencies and attorneys around the country. A quick glossary of terms: There are two kinds of surrogacy: traditional and gestational. In traditional surrogacy, the woman carrying the child (commonly referred to as a "traditional surrogate" or just a "surrogate") is also the genetic mother of the child/ren she's carrying. In other words, a traditional surrogate is a woman who has agreed to be inseminated with donor sperm and carry a child to term for another individual or couple, with the intention of giving the child to him/her/them immediately following birth, even though the child is genetically related to the carrier/surrogate. Because it involves a contractual commitment for a woman to give up her own biological child, traditional surrogacy is generally quite controversial and most folks acknowledge it is legally risky business. But gestational surrogacy is a process where an embryo is created through in vitro fertilization of eggs with sperm, and then implanted into the womb of a woman (commonly called a "gestational carrier") who is not genetically related to the child. This is the true "rent-a-womb" scenario, and is generally considered legally far safer. So back to the cases. Both have, as I said earlier, made national headlines, so you may already be familiar with them. Both, surprisingly, involved gestational surrogacy -- the women carrying the babies were not genetically related to them. And in both cases, the gestational carriers -- the women whose wombs had been rented -- were found to be legal mothers of the children despite this lack of a genetic connection. A surprising result? Not if one stops to look at the laws of the states in which these two cases occurred. The first took place in Michigan, where contractual surrogacy is not only illegal but is actually criminal. "Michigan has very strict laws prohibiting surrogacy contracts. State law not only holds these agreements unenforceable, but also imposes fines (up to $50,000.00) and jail time (up to five years) on anyone who enters into such a contract." Knowing that, the outcome of a surrogacy challenge in Michigan no longer seems surprising. The second took place in New Jersey. This case was somewhat more surprising because, up until the court ruled in December, many believed that gestational surrogacy was legal in New Jersey -- and the surrogacy agreements enforceable -- at least for unpaid surrogacy arrangements. (Traditional surrogacy is clearly illegal in New Jersey, under the Baby M. case from the 1980's.) The New Jersey case involves a married gay couple who had contracted with the sister of one of the men to carry a baby for them. Ultimately, the couple conceived twins, using the sperm of one of the men and donated eggs; and the other man's sister carried the twins to term for them as an uncompensated gestational carrier. So far so good. However, after the twins were born the sister decided that she wanted to be a mother instead of an aunt, and she has now won parental rights in court. This has pitted brother against sister in a custody battle, which is about as ugly as it gets; and it has made clear -- at least for the moment -- that both traditional and gestational surrogacy contracts are unenforceable in the state of New Jersey. So what's going on out there? The short answer is that surrogacy law remains as unclear as it always has been, with the 50 states forming a patchwork quilt of laws and policies that vary as much as state birds and flowers vary. The outcome of any surrogacy dispute will depend largely on the state in which the dispute occurs. At some point, there may be uniformity to surrogacy legislation around the country, but I'm not holding my breath. In the meantime, it is incumbent on fertility clinics, surrogacy agencies, surrogacy attorneys, and anyone else involved in the assisted reproduction arena to help get the word out: individuals or couples seeking to become parents through surrogacy MUST know the laws of the states in which they are engaging in the surrogacy process. Otherwise, they run the risk of ending up like the couples in Michigan and New Jersey -- with their years of planning for parenthood producing nothing more than a legal battle over parentage and a mess of heartbreak.


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