Legal History of Surrogacy Agreements
There have been numerous legal cases on surrogacy agreements. However, two cases serve as landmark decisions on the issue here in the United States. In the case In re Baby M,¹ a married couple engaged in a traditional surrogacy arrangement, whereby the surrogate was inseminated with the sperm of the husband-intended parent. In Johnson v. Calvert,² the Calverts, also a married couple, engaged in a gestational surrogacy agreement with Ms. Johnson, where Ms. Johnson agreed to be implanted with the in vitro fertilized embryo of the Calverts. In both cases, the surrogate was paid. In both cases the surrogate claimed she was the “natural mother” and wanted to keep the baby after birth. In the In re Baby M case, the court nullified the commercial surrogacy agreement as a violation of public policy. In the Calvert case, the court upheld the commercial surrogacy agreement and ruled in favor of the “intended parents.”

Action by State Legislatures
Responding to the Baby M case, many state legislatures enacted laws making commercial surrogacy agreements unenforceable. Other state legislatures imposed civil penalties for those engaged in procuring such contracts. A few states imposed criminal penalties on individuals engaged in this enterprise, including Michigan, New York, Washington and the District of Columbia.³ At least one state, Illinois, allows surrogates to be paid.⁴

To date, North Carolina’s legislature has remained silent on the issue of surrogacy. Although no official record exists in the State as to those contracts that have been upheld and those that have been rejected, at least one commentator has argued that using the adoption laws, surrogacy agreements are lawful in North Carolina as long as payments to the surrogate are limited to expenses incurred.⁵

Surrogacy in North Carolina
Only one bill in the General Assembly has touched on the issue of gestational surrogacy. SB 440—An Act Establishing Laws Pertaining to Gestational Surrogacy Agreements was introduced in the 2009 legislative session, and would have allowed the purchase of babies from surrogates for a “reasonable price.” The second edition of SB 440 required that the pregnancy be a result of a medical procedure, the surrogate be at least 21 years old and have given birth at least once. Additionally, the contract had to be approved by the court prior to pregnancy. It would have also required the “intended parents” to be a married mother and father. Finally, the bill emphasized that the surrogate’s parental rights would be irrevocably forfeited prior to conception without any option to terminate the contract.

Bad Public Policy
Surrogacy agreements are simply bad public policy. By definition, they degrade the relationship between mother and child, the humanity of children, and the meaning of parenthood. The financial implications of poor women renting their bodies to wealthy couples exploits both parties.

Treating Humans as Commodities. For over two centuries, this country has been committed to the belief that human beings are not chattel for sale on the open market. Traditionally, adoption laws have reflected this belief, and state legislatures and courts have carefully monitored adoption proceedings to ensure that any monies paid to the birth mother are for expenses incurred, not for the purchase of the child.

Commercial Surrogacy agreements, both traditional and gestational, fly in the face of this long tradition. Some may argue that the price paid to the surrogate is not for the baby but for the services rendered by the surrogate. However, as part of the arrangement, the surrogate will relinquish her rights to the child prior to conception. If, in fact, the payment is for “services,” she would be allowed to keep the monies paid if she decides to keep the child. Her “services” would be over once the child is born. However, under commercial surrogacy agreements, a surrogate would be breaching the contract if she fails to surrender the child to the “intended parents” and would be required to return the funds paid.⁶

Paying the surrogate was particularly repugnant to the court in In Re Baby M. While the fee in 1987 was nothing compared to what surrogates receive today, in that case the court stated, “Whatever idealism may have motivated any of the participants, the profit motive predominates, permeates, and ultimately governs the transaction. … There are, in a civilized society, some things that money cannot buy.”⁷

Encourage Growth of a “Designer Baby” Industry. “[He] is laid back, calm and believes things will eventually work out fine. He is self-confident and does not get frustrated easily. He admires honesty, loyalty and reliability. His physical appearance is of a tall 6’2” man with brown eyes and black hair…He is currently a student studying for a BA in government.”⁸ This may sound like a “personal” ad in the local newspaper, but it is actually a description of “Donor #2941,” selling his sperm through a sperm donor bank in Virginia.

In pursuing a misplaced “right” to have children, the U.S. has already started down the path of producing “designer babies” through in vitro fertilization and sperm and egg donations. The Internet is full of advertisements for sperm companies interested in buying, and selling sperm and eggs. These sales have been going on for years but as recently as 2007, the “Designer Baby” market took a giant leap forward with embryos for sale.

The Abraham Center of Life opened in July 2006 and closed in 2007. Located in San Antonio, Texas, the Abraham Center of Life was the first, and hopefully the last, commercial enterprise making embryos for potential buyers. After reviewing information sheets detailing race, education, personalities and hair color of the sperm and egg donors, couples or single women could place their order. When asked by a reporter from the San Francisco Chronicle if she was selling “designer babies,” owner Jennalee Ryan responded, “Yeah. Why not?”⁹

The availability of surrogacy agreements will only lead further down the path of creating “designer babies,” a step which further degrades the sacredness of human life. Genetically engineering the creation of human life and his/her subsequent sale reduces the child to little more than a commodity, devoid of human dignity or a recognition that he or she is a creation of God, made in his image and likeness. Selling human life hearkens back to some of this nation’s most shameful and reprehensible days.

Exploiting Women. Surrogacy Agreements have been described as “reproductive prostitution”¹⁰ where, like prostitution, women rent their bodies for the benefit of others. To ensure a high quality “product,” surrogates are screened for their size and intelligence. According to the Web site, thesurrogacysource.com, women must meet certain qualifications in order to make “the cut,” such as not being on government assistance, not having an arrest record, having reliable transportation, and having proportional height and weight. A first-time surrogate’s fee is $23,500 with an experienced surrogate receiving $33,500.¹¹With fees that only go up from there, it is little wonder that the majority of surrogates are poor.¹²

Some may argue that all women, including the poor, should have the right to do what they want with their bodies. While this may sound liberating to some, this position contradicts long-standing public policy in this country. Women, rich or poor, are not allowed to prostitute themselves, nor are they allowed to sell their body parts. Renting body parts—in this case their womb—should be no different.

As the court stated in the In Re Baby M case, “There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life.”¹³ Relegating poor women to the status of “baby machines” is not something in which this country or this State should participate.

Threatening Children. Some commentators will argue that surrogacy agreements are comparable to adoption laws. However, a close review of each underscores the differences. The court in In re Baby M provides an excellent analysis of how adoption laws promote the best interest of the child, while surrogacy agreements ignore them.¹⁴

Monies Paid. In adoption, monies are paid to the birth mother after she becomes pregnant. These monies are for expenses during pregnancy and childbirth, and are closely monitored by the court. In contrast, in surrogacy arrangements, the birth mother is paid to become pregnant and the payment amount is not limited.

Best Interest of the Child. Adoption laws require the state to closely screen potential adoptive parents. In contrast, in In re Baby M and most surrogacy arrangements, the “intended parents” are not screened by the state to determine their fitness as parents.

Undermining the Family. Long-standing tradition in this country dictates that parents, not communities or government, have the right and responsibility to care for their children. This right will not be abridged absent evidence that the child is in imminent harm in the custody of his/her parents. Except in rare cases, voluntary relinquishment of parental rights is never irrevocable. In fact, most state courts will allow irrevocable relinquishment of parental rights only when a child is being turned over to a State agency.¹⁵ Adoption laws reflect this long-standing principle. After an adoption, a birth mother has a certain period of time during which she can reclaim her child.

Surrogacy agreements require a surrogate to sign over her parental rights to the “intended parents” prior to conception. This contract, and the agreement to relinquish parental rights, becomes irrevocable once the surrogate becomes pregnant. In the In Re Baby M case, writing for the majority, Justice Wilentz argued:

“The surrogate never makes a totally voluntary informed decision, for quite clearly any decision prior to the baby’s birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary.”¹⁶

A Ticking Time Bomb
SB 440 did not make the May 14, 2009 crossover deadline, but the fact that it is North Carolina’s first and only legislative attempt to regulate surrogacy agreements means that lawmakers and citizens alike should understand the legal and ethical implications of these agreements.

North Carolina’s foray into surrogacy agreements has far broader implications than just giving infertile married couples the opportunity to have a baby with their genetic make-up. The bill did not require proof of infertility for the contract to be upheld. Indeed, only one chamber’s version required that there be two “intended parents” and that they be married, and there was no requirement that the child be in any way genetically linked to the “intended parents.” If this bill were intended solely for that purpose, these restrictions would have been in the original bill in both chambers.

Second, the bill would have done little to protect the child. It did not require the “intended parents” to undergo any type of screening similar to adoption. It did not require psychological testing, home-site visits, etc. Anyone with enough money would be able to rent a woman’s womb, and buy a child.

Furthermore, the bill provided no guidelines on the composition of the embryo. Since biblical times, laws have prohibited a person from marrying their next of kin to prevent the genetic abnormalities that result in children produced from that union. There were no limitations on the genetic composition of the embryos used in surrogacy arrangements. The egg of a sister could be combined with the sperm of a brother.

SB 440 was deafeningly silent on the future of the child if the parents died prior to the child’s birth. Would the child be a piece of property bought by contract to be inherited by the estate? Would the child be treated as a child without a guardian, and would the child become a ward of the state?

The proposed bill also ignored the well-being of the surrogate. Proponents of surrogacy agreements argue that this is a way for women to make money and that prohibition of these agreements only hurts these women. If this concern is legitimate, why not require psychological counseling for the surrogate on the effects of giving up a child as a condition of the contractual obligation to the “intended parents”? Why not allow the surrogate the right to revoke the relinquishment of her parental rights? While SB 440 did not contain these provisions, adoption laws do.

Conclusion
“Hard cases make bad law.” This lesson learned on the first day of law school certainly rings true in the case of surrogacy agreements. To be told that you will never be able to have your own biological children can be a painful discovery. However, in our rush to provide solutions for infertile couples, we cannot run rough-shod over the rights of the child, the rights of birth parents, and the rights of the poor. Their individual rights and the stability of the family and our democracy hang in the balance. Rather than introducing legislation that legalizes gestational surrogacy agreements, the North Carolina legislature should enact a law criminalizing the sale of babies and exploitation of the poor through these agreements.

Footnotes

1. In re Baby M, (109 N.J. 396, 537 A.2d 1227, 77 A.L.R.4th 1 (1988).

2. Johnson v. Calvert (5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P2d 776 (1993).

3. Mich. Comp. Laws Sec. 722 (1988). Also: D.C. Code Sec. 16-402 (1993). See also: Wash. Rev. Code Sec. 26.26.250 (1989). See also: N.Y. Dom. Rel. Sec. 123 (1999).

4. 750 Ill. Stat 47/25(b)(4) (2005).

5. “Growing a Baby For Sale or Merely Renting A Womb: Should Surrogate Mothers Be Compensated for Their Services?”, 6 Whittier J. Child & Fam. Advoc. 529 (2006-2007) at page 534 footnote 45.

6. “Bartering for Babies: Are Preconception Agreements in the Best Interests of Children?”, 26 Whittier Law Review 429 at 484.

7. In re Baby M, id at 25.

8. See http://www.fairfaxcryobank.com/NewSpermDonors.shtml

9. “Embryos Made to Order”, San Francisco Chronicle, August 8, 2006.

10. See “The Public Policy Considerations of Surrogate Motherhood Contracts: An Analysis of Three Jurisdictions,” 3 Alb. L.J. Sci. & Tech 46 (1993) at p. 46.

11. See http://www.thesurrogacysource.com.

12. 3 Alb. L.J. Sci. & Tech 46 (1993) see footnote 30 at page 46.

13. In Re Baby M, id. at 25.

14. Id. at 24.

15. In Re Baby M, at 24.

16. Id at 23.

Mary Summa is an attorney in Charlotte, North Carolina.

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.