Hostname: page-component-78c5997874-dh8gc Total loading time: 0 Render date: 2024-11-06T02:13:50.089Z Has data issue: false hasContentIssue false
  • English
  • Français

A Civil Liberties Analysis of Surrogacy Arrangements

Published online by Cambridge University Press:  28 April 2021

Larry Gostin
Get access Rights & Permissions [Opens in a new window]

Extract

Proponents of surrogacy arrangements assert that a married couple's right to procreative autonomy includes the right to contract with consenting collaborators for the purposes of bearing a child. The right to genetic continuity and to rear offspring are all part of the right of reproductive choice for the contracting father and his partner.

Critics of surrogacy arrangements similarly cite reproductive autonomy as the basis for their claim that women cannot be compelled by contract to use their bodies in particular wayeither to forgo the right to abortion or to be fetal containers. The right to autonomy over her own body and to rear the offspring she has borne are all part of the mother's reproductive freedom.

Both proponents and critics of surrogacy arrangements, therefore, claim that their positions maximize freedom and liberty. Each position, of course, focuses on the autonomy of the party the commentator favors; the analysis is invariably outcome-determinative, without enunciating a neutral civil liberties framework. Neither proponents nor critics define clearly what the right to procreate entails, or what resolution is warranted when there is a conflict.

Type
Civil Liberties
Information
Law, Medicine and Healthcare , Volume 16 , Issue 1-2 , Spring 1988 , pp. 7 - 17
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

There are three distinct roles that are potentially involved in a surrogacy arrangement: The woman who gestates the child and who gives birth (whom I will refer to as the gestational mother); the woman who donates an egg without bearing the baby (the egg donor is usually, but not necessarily, the gestational mother); and the man who provides the sperm (whom I will refer to as the genetic father).Google Scholar
See, e.g., Robertson, John, “Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth,” Virginia Law Review, 69 (April 1983): 405; Robertson, John, “Surrogate Mothers: Not So Novel after All,” Hastings Center Report (October 1983): 28.Google Scholar
See, e.g., Annas, George, “Pregnant Women as Fetal Containers,” Hastings Center Report (Dec. 1986): 13; Annas, George, “The Baby Broker Boom,” Hastings Center Report (June 1986): 30.Google Scholar
In re Baby M, 217 N.J. Super. 313 (1987), rev'd in part, 525 A.2d 1128, 1988 W L 6251, Slip Op A-39-87, decided Feb 3, 1988.Google Scholar
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).Google Scholar
Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 2016 (1977); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). See Skinner v. Oklahoma, 316 U.S. 535 (1942).Google Scholar
Griswold v. Connecticut, 85 S. Ct. 1678 (1965).Google Scholar
Loving v. Virginia, 388 U.S. 1 (1967).Google Scholar
Zablocki v. Redhail, 434 U.S. 374 (1978).Google Scholar
Eisenstadt v. Baird, 405 U.S. 438 (1972).Google Scholar
Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010 (1977).Google Scholar
Carey v. Population Services International, 97 S. Ct. at 2016 (1977).Google Scholar
Eisenstadt v. Baird, 92 S. Ct. at 1038 (1972).Google Scholar
410 U.S. 113 (1973).Google Scholar
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).Google Scholar
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).Google Scholar
85 S. Ct. 1678 (1965).Google Scholar
85 S. Ct. at 1682.Google Scholar
Id.Google Scholar
Santosky v. Kramer, 455 U.S. 745, 753 (1982). See Myer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944).Google Scholar
Stanley v. Illinois, 405 U.S. 645 (1972).Google Scholar
Stanley v. Illinois, 405 U.S. at 650 (unwed father is a parent whose existing relationship with his children must be considered); Caban v. Mohammed, 441 U.S. 380 (1978) (statute that prevented unwed father, but not unwed mother, from vetoing adoption of natural child was unconstitutional when the father had a relationship with the children comparable with the mother's).Google Scholar
See Annas, George, “Pregnant Women,” supra note 3, at 13.Google Scholar
In re Baby M, slip op A-39-87 (1988); Holder, Angela, “Surrogate Motherhood: Babies for Fun and Profit,” Law, Medicine & Health Care, 12 (1984): 115.Google Scholar
Robertson, John, “Procreative Liberty and the Contract of Conception, Pregnancy and Childbirth,” Virginia Law Review, 69 (1983): 405, 416.Google Scholar
In re Baby M, slip op A-39-87, p. 51.Google Scholar
Id.Google Scholar
Krimmel, H.T., “The Case Against Surrogate Parenting,” Hastings Center Report (Oct. 1983): 35.Google Scholar
In re Baby M, slip op. A-39-87, p. 5.Google Scholar
Id.: 62.Google Scholar
Id.: 62–68.Google Scholar
Id. 4.Google Scholar
Report of the Committee of Inquiry in Fertilisation and embryology (London: H.M. Stationery Office, Cmnd 9314, 1984).Google Scholar
Brahms, D., “The Hasty British Ban on Commercial Surrogacy,” Hastings Center Report (Feb. 1987): 16.Google Scholar
In re Baby M, slip op. A-39-87, p. 46.Google Scholar
In re Baby Girl D, 517 A.2d 925 (1986).Google Scholar
Radin, Margaret Jane, “Market-Inalienability,” Harvard Law Review, 100 (1987): 1849 at 1928–29.Google Scholar
In re Baby M, slip op. A-39-87, p. 21.Google Scholar
Radin, supra note 37, at 1849.Google Scholar
In re Baby M, slip op A-39-87, p. 48.Google Scholar
ACLU Policy #262.Google Scholar
In re Baby M, slip op A-39-87, p. 26.Google Scholar
Radin, supra note 37.Google Scholar
In re Baby M, slip op A-39-87, p. 44.Google Scholar
Id.: 46.Google Scholar
Id.: 45.Google Scholar
Id.: 47.Google Scholar
Id.Google Scholar
704 S.W.2d 209 (Ky. 1986).Google Scholar
Dissenting opinion of Vance, J., 704 S.W. at 214. The contract in the Baby M case was structured in much the same way.Google Scholar
See Brophy, , “A Surrogate Mother Contract to Bear a Child,” Journal of Family Law, 20 (1982): 263.Google Scholar
See Note, “Developing a Concept of the Modern ‘Family’: A Proposed Uniform Surrogate Parenthood Act,” Georgetown Law Journal, 73 (1985): 1283.Google Scholar
Two very strong articles by members of my committee add weight to the argument. See Wolf, Susan, “Enforcing Surrogate Motherhood Agreements: The Trouble with Specific Performance,” New York Law School Human Rights Annual, vol. 4; Mahoney, Joan, “An Essay on Surrogacy and Feminist Thought,” Law, Medicine & Health Care, 16 (1988): 81.Google Scholar
“Waive” means to forgo the exercise of a right. I will distinguish between a current waiver, which takes place at the time the right could have been invoked, and a future waiver (or alienation), which is a promise now to waive a right in the future. See “Rumpelstiltskin Revisited: The Inalienable Rights of Surrogate Mothers,” Harvard Law Review, 99 (1986): 1936, 1941.Google Scholar
See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (courts must indulge in every reasonable presumption against waiver of fundamental rights); Glasser v. U.S., 315 U.S. 60, 70 (1942) (same presumption applies to rights enumerated in the Bill of Rights).Google Scholar
Brady v. U.S., 397 U.S. 742, 748 (1970) (waiver of right to trial). See Boykin v. Alabama, 393 U.S. 238 (1969); Rubin, , “Toward a General Theory of Waiver,” UCLA Law Review, 28 (1981): 478, 487.Google Scholar
See Tribe, Lawrence, American Constitutional Law (1978), 469; Kreimer, , “Allocational Sanctions: The Problem of Negative Rights in a Positive State,” University of Pennsylvania Law Review, 132 (1984): 1293.Google Scholar
Diaz v. United States, 223 U.S. 442, 455 (1912); Lewis v. U.S., 146 U.S. 370, 372 (1892).Google Scholar
Pate v. Robinson, 383 U.S. 375, 384–85 (1966).Google Scholar
Stevens v. Marks, 383 U.S. 234, 244 (1986).Google Scholar
Rivera v. Marcus, 696 F.2d 1016, 1206 (1982). But see Reimche v. First National Bank of Nevada, 512 F.2d 187 (9th Cir. 1975); In re Shirk's Estate, 186 Kan. 311, 350 P.2d 1 (1960).Google Scholar
The New Jersey Supreme Court refused to enforce the Baby M contract on statutory, not constitutional, grounds.Google Scholar
The Supreme Court has on numerous occasions decided that a person has the right to physical autonomy unless there is a strong countervailing state interest, such as public health (Jacobson v. Massachusetts, 197 U.S. 11 [1905]), or the life of a viable fetus (Roe v. Wade, 410 U.S. 113 [1973]). See Gostin, Larry, “The Future of Communicable Disease Control: Toward a New Concept in Public Health Law,” Milbank Quarterly, 64, Supp. 1 (1986): 79–96.Google Scholar
See Rhoden, Nancy, “Cesareans and Samaritans,” Law, Medicine & Health Care, 15 (1987): 118–25.Google Scholar
Jefferson v. Griffin Spaulding County Hospital Authority, 274 S.E.2d 457 (Ga. 1981). See Kolder, V.E.B. Gallagher, J. Parsons, M.T., “Court-Ordered Cesarean Deliveries,” New England Journal of Medicine, 316 (1987): 1192–96.Google Scholar
Macklin, Ruth, “Is There Anything Wrong with Surrogate Parenting?: An Ethical Analysis,” Law, Medicine & Health Care, 16 (1988): TK.Google Scholar
428 U.S. 52 (1976).Google Scholar
Id.: 69.Google Scholar
443 U.S. 622 (1979).Google Scholar
See Jones v. Smith, 278 So.2d 339 (Fla. 1973), cert. denied, 415 U.S. 958 (1973) (denying an illegitimate child's potential father the right to prevent the mother from having an abortion); Ponter v. Ponter, 135 N.J. Super. 50, 342 A.2d 574 (Ch. Div. 1975) (denying husband the right to prevent wife from undergoing sterilization).Google Scholar
Coleman, , “Surrogate Motherhood: Analysis of the Problems and Suggestions for Solutions,” Tennessee Law Review, 50 (1982): 71, 85; Tribe, Lawrence, “The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Independence,” Harvard Law Review, 99 (1985): 330, 336.Google Scholar
Parker, Phillip, “Motivation of Surrogate Mothers: The Initial Findings,” American Journal of Psychiatry, 140 (1983): 117–18.Google Scholar
McConnell, , “The Nature and Basis of Inalienable Rights,” Law and Philosophy, 3 (1984): 25, 41; Radin, , supra note 37, at 1898; Robertson, , “Procreative Liberty,” supra note 2.Google Scholar
Baby, M, slip op A-29-87.Google Scholar
Statement of Margaret Radin and Alexander Capron at a hearing on surrogate parenting before the Senate Committee on Health and Human Resources of the California Legislature, Dec. 11, 1987.Google Scholar
See infra, notes 81–86.Google Scholar
For an excellent discussion of the importance of a woman's unique reproductive capabilities in assessing gender discrimination, see Williams, Wendy, “Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate,” Review of Law & Social Change, 13 (1984): 325–80.Google Scholar
In re Baby M, slip op A-39-87, p. 81.Google Scholar
Id.Google Scholar
The gestational mother's early bonding to and nurturance of the baby is likely to result in her being granted temporary custody. In re Baby M, p. 84. These concerns weigh in favor of both a relatively short period after birth during which the mother can decide whether or not she wishes to retain her parental status and, if she does, an accelerated custody trial.Google Scholar
405 U.S. 645 (1972).Google Scholar
Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1978); Lehr v. Robertson, 463 U.S. 248 (1983).Google Scholar
Lehr v. Robertson, 463 U.S. 248 (1983).Google Scholar
Quilloin v. Walcott, 434 U.S. 246 (1978); Lehr v. Robertson, 463 U.S. 248 (1983).Google Scholar
Caban v. Mohammed, 441 U.S. 380 (1978).Google Scholar
463 U.S. 248 (1983).Google Scholar