federal surrogacy regulation

FEDERAL REGULATION AND ENFORCEABILITY OF SURROGACY

CONTRACTS SAVANNA WILLIAMS

HADM3700 – HEALTH LAW APRIL, 2015

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The practice of surrogacy is something that has been trivialized through popular media and movies like

Baby Mama; however, what many people do not realized is at the heart of this centuries old practice is a history of

heartache and legal issues. Surrogacy goes back hundreds of years, as women throughout the centuries have carried

children for other women, whether for monetary compensation or simply to assist a family member. The first

“modern” surrogacy did not occur until the 1970s, bringing the legal issues into the spotlight.1 Unfortunately, this

practice has evolved into a major social issue, as there is very limited legal regulation of the practice in the United

States, allowing for complicated questions of parental rights to arise. Due to the lack of federal regulation and

inconsistent statutory law, surrogacy contacts are rarely regarded as legally binding and enforceable. The purpose of

this analysis is to answer the following questions: should the practice of domestic surrogacy be regulated by federal

legislation? Should surrogacy contracts be legally binding and enforceable in all states? In order to sufficiently

examine these questions, this paper will focus first on the definition of surrogacy, legal issues regarding surrogacy,

and finally provide an answer to the proposed research question, including a suggestion for federal policy.

DEFINITION OF SURROGACY Surrogacy is the practice of using a surrogate mother to carry and birth a child when an individual or couple

is unable to do this on their own.2 There are two primary types of surrogacy: traditional and gestational. Traditional

surrogacy is when “the surrogate acts as both the egg donor and as the actual surrogate for the embryo”3 and she is

impregnated using the biological father’s sperm with is injected using intrauterine insemination. Gestational

surrogacy is when “the embryo is actually created by using both the biological father's sperm and the biological

mother's egg through a process called in vitro fertilization.”4 Once the embryo is fertilized, it is then transferred into

the uterus of the surrogate, who will carry the pregnancy to full term.5 With the gestational option, the baby is not

biologically related to the surrogate at all.

FEDERAL LAWS ON SURROGACY Currently, there is an absence of federal laws regarding surrogacy in the United States, an issue that is

being brought to people’s attention on a national level. This lack of federal regulation has led to confusion as to

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whether surrogacy contracts are enforceable and legally binding or not. One of the most pressing issues halting the

federal regulation of surrogacy is the fact that individual states have the power to regulate family law. There are

many inconsistencies in the state regulation of surrogacy: some states prohibit surrogacy contracts, some have failed

to address the issue, and the District of Columbia has gone so far as to criminalized surrogacy contracts.6 Some

argue that this lack of federal legislation stems from two distinct view points, according to Susan Markens in her

book Surrogate Parenthood and the Politics of Reproduction: “our simultaneous exaltation of individual rights and

laissez-faire approach to the marketplace and our protective stance toward families.”7 Because there has historically

existed a strong presence of both Christian and conservative beliefs in the United States, many pieces of legislation

aim at keeping children with their birth parents. In addition to this, the subject of reproductive rights and alternative

or assisted reproduction options has been traditionally difficult to solve and adequately regulate to the satisfaction of

the majority of U.S. citizens.

Since the 1980s, there have been various legislative attempts to federally regulate the status of children

born by surrogacy, seeking to answer the question of who the child belongs to: the intended parents of the surrogacy

contract, the biological egg and/or sperm donor(s), or the birth mother. At the time, there existed a stringent national

sentiment that surrogacy contracts should be prohibited and surrogacy as a whole should be largely discouraged.8

This sentiment reflected the international regulation of surrogacy, as many countries banned surrogacy contracts or

the exchange of money for surrogacy services, including Canada, Australia, Germany, and Hong Kong.9 The

Surrogacy Arrangements Act of 1987 proposed to “[amend] the Federal criminal code to provide criminal penalties

for anyone who, on a commercial basis, knowingly makes, engages in, or brokers a surrogacy arrangement.”10 It

also proposed to “[amend] the Federal Trade Commission Act to provide criminal penalties for anyone who

advertises the availability of such an arrangement.”11 The Uniform Laws Commission12 drafted the Uniform

Parentage Act in 200013 – later revised in 2002 – which provides states with suggestions for statutory law regarding

various parentage issues. Sections 801-809 of the Act set up provisions for creating a valid surrogacy agreement.14

The Act is incredibly detailed; however, because it is a uniform act is it merely a suggestion for states to enact it.

Very few states have passed the Act as whole, which further propagates the issue of unclear judicial oversight

regarding surrogacy.

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MAJOR CASES ON SURROGACY While the practice of surrogacy of various forms dates back hundreds of years, even to the days of the

Bible, the first piece of litigation regarding surrogacy and surrogacy contracts occurred in the 1980s with the Baby

M case.15 In the Matter of Baby M was tried in the Superior Court of New Jersey16 and led to the first major

litigation regarding surrogacy. The facts of the case are as follows: in February 1985, William Stern and Mary Beth

Whitehead entered into a surrogacy contract17 whereby it was agreed that Mrs. Whitehead would provide a child to

the Sterns with Mr. Stern as the biological father via artificial insemination of his sperm.18 The contract stipulated

that Mrs. Whitehead would “carry the child to term, bear it, deliver it to the Sterns, and thereafter do whatever was

necessary to terminate her maternal rights so that Mrs. Stern could thereafter adopt the child.”19 Mrs. Stern was

likely not included as a party to the surrogacy contract in an effort to avoid being in violation of the baby-selling

statute of New Jersey.20 Prior to Baby M’s birth, Mrs. Whitehead expressed symptoms of depression, stating she was

not sure she could relinquish the baby.21 On March 27, 1986 Baby M was born and on March 30 she was turned

over to the Sterns, after which Mrs. Whitehead became emotionally distraught.22 The Sterns allowed Mrs. Whitehead

to have Baby M for a short period of time, fearing that Whitehead would commit suicide and expecting they would

get their child back; however, after four months Mrs. Whitehead would not return the child.23

Mr. Stern filed a complaint with the Superior Court of New Jersey24 to uphold the contract and seek that

Baby M was returned to the Sterns. The trial court held25 that the surrogacy contract was valid and that Baby M

must be surrendered to the Sterns in the baby’s best interest.26 Mrs. Whitehead appealed the decision to the Supreme

Court of New Jersey27 where the appellate court reversed the trial court’s holding.28 The surrogacy contract was

found to be invalid and against public policy.29 The exchange of money for the surrogacy agreement was illegal

under New Jersey Statute, N.J. Stat. Ann. § 9:3-54.30 The adoption of Baby M by Mrs. Stern was thus deemed

invalid, leaving Mrs. Whitehead as the legal mother31; however, parental custody was granted to Mr. Stern.32

The case of Baby M was undoubtedly a landmark case for the issue of surrogacy. Had the holding of the

trial court33 not been reversed, there would have been legal precedent for surrogacy contracts to be legally

enforceable and for the intended parents in a surrogacy contract to have parental rights to the baby. Because the

Supreme Court of New Jersey reversed this decision34, the court set precedent for surrogacy contracts to be

unenforceable and the exchange of money for surrogacy to be criminalized. The case of Baby M is just one instance

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in a history of confusing litigation that offers no clear rationale to whether surrogacy contracts are valid and

enforceable and whether the exchange of money for surrogacy is legal in the United States

A second major case regarding the issue of surrogacy contracts was tried in 1993 in the Supreme Court of

California.35 Interestingly, the holding of Johnson v. Calvert36 is directly opposite of that of the appellate court’s

holding in the Baby M case. The facts of the case are as follows:

“On January 15, 1990, Mark [Calvert], Crispina [Calvert], and Anna [Johnson] signed a contract providing that an embryo created by the sperm of Mark and the egg of Crispina would be implanted in Anna and the child born would be taken into Mark and Crispina's home "as their child." Anna agreed she would relinquish "all parental rights" to the child in favor of Mark and Crispina. In return, Mark and Crispina would pay Anna $ 10,000 in a series of installments, the last to be paid six weeks after the child's birth. Mark and Crispina were also to pay for a $ 200,000 life insurance policy on Anna's life.”37

This case is an example of gestational surrogacy, as Mrs. Johnson is not genetically related to the child in question

in any way. Throughout Mrs. Johnson’s pregnancy, the relationship between her and the Calverts deteriorated for

various reasons38 and in July 1990 Mrs. Johnson sent the Claverts a letter demanding the balance of her payments or

else she would not relinquish the child.39 Both the Calverts and Mrs. Johnson filed lawsuits seeking to be declared

the legal parents of the unborn child.40 Both suits were later consolidated and went to trial in October 1990, after the

child was born in September 1990.41

The trial court held that the Calverts were the baby’s “genetic, biological, and natural” parents, that Mrs.

Johnson had no parental claims to the child, and the surrogacy contract was enforceable.42 Mrs. Johnson appealed to

the Court of Appeal for the Fourth District, Division Three of California, and the appellate court affirmed the trial

court’s decision.43 The Supreme Court of California reviewed the case.44 Mrs. Johnson tried to argue that under the

Uniform Parentage Act,45 as a surrogate mother she was “natural mother” and thus had parental rights to the child.

The Supreme Court of California stated:

“We conclude that although the Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child-‐-‐that is, she who intended to bring about the birth of a child that she intended to raise as her own-‐-‐is the natural mother under California law.”46

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Essentially, the court stated that Mrs. Calvert is the natural mother of the baby in question by default because Mrs.

Johnson did not fulfill both requirements of the Act – being genetically related and birthing the baby – and Mrs.

Calvert is the one with the initial intent to raise the baby. The At the conclusion of the Supreme Court of

California’s review, the holding of the appellate court47 was affirmed: the Calvert’s were deemed the legal parents of

the baby and the surrogacy contract was enforceable48.

The Johnson v. Calvert case was a landmark decision in the issue of surrogacy, as it’s holding was the

exact opposite of that in In the Matter of Baby M: the surrogacy contract in question was in fact legally binding and

enforceable.

Though In the Matter of Baby M and Johnson v. Calvert are both influential pieces of litigation, they are

just the two most well known examples of the lack of clear statutory or federal laws regarding the legality and

enforceability of surrogacy contracts. Both cases occurred early on in the history of surrogacy lawsuits and there

have been many since then, all of which have provided very little clarity into the matter. The case of J.F. v. D.B.49

reached the Supreme Court of Ohio in 2007 after being heard at both the trial court and appellate court levels. The

surrogacy contract in question stated will the surrogate mother – in a gestational surrogacy – "’would not attempt to

form a parent-child relationship with any child conceived pursuant to the contract’ and will ‘institute proceedings’ to

‘terminate [her] parental rights’ upon the birth of the children.”50 In a custody battle and breach of contract suit, trial

court held that the surrogacy contract in question was unenforceable and was a violation of Ohio public policy, a

common decision of courts in surrogacy contract cases.51 52 The appellate court reversed the decision,53 claiming the

contract was in fact enforceable and did not violate any policies. Upon review at the Supreme Court of Ohio, the

court reversed54 the judgment of the appellate court, citing that “Enforcing this contract, which is no less than a

contract for the creation of a child, is likely to open Ohio to being an interstate, and perhaps international,

marketplace for gestational surrogacy.”55

Essentially, the contract in J.F. v. D.B. was held to be unenforceable because of the possibility that it could

set precedent for the state of Ohio to become a haven for surrogates. To lawmakers, this should illustrate the clear

need for comprehensive federal laws and regulations about surrogacy. If a state’s court system legitimately fears

parties seeking to enlist a legally bound surrogate to flock to their state, there exists a need for proper regulation.

Rather than leaving states on their own to either outlaw surrogacy contracts and the exchange of money for

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surrogacy or entirely ignore the issue, Congress needs to approach this growing issue. In the gestational surrogacy

case of J.R., M.R. and W.K.J., Plaintiffs, vs. The State of Utah,56 the issue was not that either the biological parents

or the surrogate had fault with each other, but that the state of Utah refused to recognize the biological and intended

parents as the baby’s legal parents. There is such serious inconsistency in statutory surrogacy law that surrogates are

permitted to keep babies that are not biologically or contractually theirs, and even when there is completely

agreement between all parties, some states refuse to recognize the intended parents as such.

ANALYSIS AND SUGGESTION OF FEDERAL POLICY In many surrogacy-related cases, the issue in question is that the surrogacy contract is unenforceable. The

plaintiff cannot sue for breach of contract because the contract is not actually valid or for kidnapping if a surrogate

refuses to relinquish the baby. Refusing to relinquish a baby that is contractually not the surrogate’s – regardless of

if the baby was conceived via traditional or gestational surrogacy – should be cause for the same punishments as

kidnapping. The child does not belong to the surrogate, because the surrogate waived her rights to claim the child as

her own when entering the surrogacy contract.

A federal recognition of the validity of surrogacy contracts would solve this problem and protect the parties

involved. The intended parent(s), surrogate mother, and donor(s) should all be able to enter in a legally binding

contract that stipulates the terms of the surrogacy agreement. It should include details of who is carrying the baby,

who is donating the egg and sperm, and who exactly the intended parents who will raise the child are. Additionally,

there needs to include exact dates of when the surrogate will relinquish the baby, and whose name will be on the

baby’s birth certificate as the parents. Surrogacy contracts should stipulate how much money will be exchanged for

the surrogacy service, with a clause stating the amount cannot be manipulated after signing, in order to protect the

intended parents from extortion. Ideally, a surrogacy contract should include specific requirements for

communication between the intended parents and the surrogate, such as where the surrogate is residing so that the

surrogate cannot flee with the unborn baby. The Uniform Parentage Act, cited previously and created by the

Uniform Laws Commission, is a near perfect example of legislation regarding surrogacy contracts. If all states were

to enact the U.P.A. – or if Congress enacted it as federal law – there were be far fewer issues of unclear judicial

holdings and surrogacy contracts would be enforceable much more frequently.

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To answer the previously stated questions: Should the practice of domestic surrogacy be regulated by

federal legislation? Unequivocally yes. The inconsistencies of statutory surrogacy law, judicial holdings, and

enactment of the Uniform Parentage Act have led to broken families and heartache. If this is not feasible in the

future, all states should strive to enact the Uniform Parentage Act. Should surrogacy contracts be legally binding and

enforceable in all states? With the passage of federal surrogacy law or the enactment of the Uniform Parentage Act

in all states, all surrogacy contracts will ideally by legally binding and enforceable. It has been said that one of the

major forces opposing the passage of federal surrogacy laws is the national desire to protect family values. What

better way to protect these values than to recognize that a surrogacy contract is a legitimate and enforceable contract,

disallowing surrogate mothers from stealing a baby away from its rightful parents?

1 "Surrogacy History." Modern Family Surrogacy Center. N.p., n.d. Web. 20 Apr. 2015.

2 "Types of Surrogacy." Modern Family Surrogacy Center. N.p., n.d. Web. 20 Apr. 2015.

3 Id. “Types of Surrogacy”



6 18 Chap. L. Rev. 553 (2015)

7 Markens, Susan. Surrogate Motherhood and the Politics of Reproduction. Berkeley: U of California, 2007. Web. 20 Apr. 2015.

8 Id. Markens

9 Id. Markens

10 United States Congress. House. Energy and Commerce; Judiciary. Surrogacy Arrangements Act of 1987. By Thomas A. Luken. 100th Cong. HR H.R.2433. N.p.: n.p., n.d. United States Congress. Web. 20 Apr. 2015.

11 Id. Surrogacy Arrangements Act of 1987

12 Uniform Laws Commission provides states with non-‐partisan legislation that brings clarity and stability to critical areas of state statutory law

13 Uniform Parentage Act § 8:801-809

14 Id. U.P.A.

15 In the Matter of Baby M. 217 N.J. Super. 313; 525 A.2d 1128; 1987 N.J. Super. LEXIS 1113

16 Id. Baby M (1987)

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17 Baby M (1987), at 344

18 Baby M (1987), at 344

19 In the Matter of Baby M. 109 N.J. 396; 537 A.2d 1227; 1988 N.J. LEXIS 1; 77 A.L.R.4th 1, at 412

20 Baby M (1988), at 414

21 Baby M (1987), at 347

22 Id. Baby M (1987)

23 Baby M (1988), at 415

24 In the Matter of Baby M. 217 N.J. Super. 313; 525 A.2d 1128; 1987 N.J. Super. LEXIS 1113

25 Baby M (1987), at 408

26 Baby M (1987), at 409

27 In the Matter of Baby M. 109 N.J. 396; 537 A.2d 1227; 1988 N.J. LEXIS 1; 77 A.L.R.4th 1, at 412

28 Baby M (1987), at 408

29 Baby M (1988), at 468

30 N.J. Stat. Ann. § 9:3-54

31 Baby M (1988), at 1

32 Id. Baby M (1988)

33 Baby M (1987), at 408

34 Baby M (1988), at 468

35 Johnson v. Calvert 5 Cal. 4th 84; 851 P.2d 776; 19 Cal. Rptr. 2d 494; 1993 Cal. LEXIS 2474; 93 Cal. Daily Op. Service 3739; 93 Daily Journal DAR 6409

36 Johnson, at 101

37 Johnson, at 87

38 Johnson, at 88

39 Id. Johnson

40 Id. Johnson

41 Id. Johnson

42 Id. Johnson

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43 Id. Johnson

44 Id. Johnson

45 Uniform Parentage Act, California Civ. Code, ß 7000 et seq.

46 Johnson, at 93

47 Johnson, at 88

48 Johnson, at 101

49 J.F. v. D.B. 116 Ohio St. 3d 363; 2007-‐Ohio-‐6750; 879 N.E.2d 740; 2007 Ohio LEXIS 3330

50 J.F. v. D.B., at 363

51 Id. J.F. v. D.B.

52 In Re Baby et al. 447 S.W.3d 807; 2014 Tenn. LEXIS 642

53 J.F. v. D.B., at 363

54 J.F. v. D.B., at 368

55 J.F. v. D.B., at 367

56 J.R., M.R. and W.K.J., Plaintiffs, vs. The State of Utah 261 F. Supp. 2d 1268; 2003 U.S. Dist. LEXIS 7785

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