At Law: Horton Hatches the Egg

Abstract

A case recently before the courts in Arizona reminds us that, since the time of Abraham and Sarah, one woman agreeing to bear a child for another has engendered problems.[1] For about the last twenty-five years, infertile couples have been able, with the aid of a so-called surrogate mother, to have a child genetically related to the husband, even when die wife is unable to produce ova or carry to term. The practice became news with Baby M, when the New Jersey Supreme Court held surrogacy contracts to be void as against public policy, refused to enforce the contract under which William and Elizabeth Stern claimed the right to be the parents of the girl borne by Mary Beth Whitehead after artificial insemination by Mr. Stern, and awarded visitation privileges to Mrs. Whitehead.[2] Since that decision, lawmakers have struggled with how to regulate the practice. In six states, statutes (some with criminal or civil penalties) declare all surrogacy contracts void, while another nine states prohibit only contracts involving payment and brokers' fees. Four of the latter--along with Arkansas and Tennessee, which have no prohibitions--provide some form of regulation of the terms and procedures to be followed for a valid contract. In most of the remaining states, courts have had to resolve surrogacy disputes by applying constitutional and common law principles and state adoption and parentage acts. To give both partners a genetic link to the potential child, fertility centers over the past decade have increasingly turned to so-called gestational surrogacy, in which artificial insemination is replaced by transfer of an embryo produced through in vitro fertilization using ova recovered from the wife and sperm from the husband. Gestational surrogacy complicates the legal picture because it adds a third dimension to the meaning of motherhood. Like adoption, surrogacy separates the role of rearing mother from what the law has called the natural mother, but gestational surrogacy breaks the latter down into the roles of genetic mother and birth mother, leaving two women with biological connections to the child. The Arizona Case Arizona, one of the six states that prohibits all surrogacy contracts, explicitly includes contracts "in which a woman agrees to implantation of an embryo not related to that woman" as well as contracts in which she "agrees to conceive a child through natural or artificial insemination and to voluntarily relinquish her parental rights to that child."[3] Although the statute prohibits the formation of such a contract, the state apparently realized that the practice would continue, for the statute also declares that the surrogate is the legal mother of a child born pursuant to such a contract and is entitled to custody. If the surrogate is married, her husband is presumed to be the father of the child, but that presumption may be rebutted by proof that another man--the husband in the infertile couple--is the father. In 1992, Ronald and Pamela Soos entered into a surrogacy contract with Debra Ballas because Ms. Soos, who had voluntarily relinquished custody of her children from a previous marriage, was unable to conceive due to a partial hysterectomy. Gametes obtained from the Sooses and fertilized in vitro were implanted in Ms. Ballas, who gave birth to triplets in September 1993. Prior to their birth, however, Pamela Soos, who had left her husband to live with another man, filed for divorce and requested that she and Ronald share custody of the children. He responded that under the Arizona statute, Ms. Ballas would be the legal mother of the children and Ms. Soos lacked standing to request custody. After the triplets' birth, the Maricopa County Superior Court issued an order naming Mr. Soos the natural father, and he took custody. Ms. Soos then filed a paternity action, arguing that Section 25-218(b) of the statute, which declares surrogates the natural mothers of children born under such contracts, is unconstitutional. …