Surrogacy: What’s the Law in Your State?

Bioethics is a field that recently grabbed the attention of the country after a recent surrogacy case. A married couple requested that their gestational carrier have an abortion after physicians discovered that the fetus she carried had severe congenital defects, (including craniofacial, cardiac and neurological problems). The surrogate was offered $10,000.00 to abort the pregnancy. The surrogate agreed to have an abortion for $15,000.00. The biological parents refused to pay this fee. The gestational carrier declined to have an abortion and moved to Michigan. Surrogacy is prohibited in Michigan. The surrogate agreed initially to have an abortion in the event that the fetus had severe medical defects. She changed her mind citing religious beliefs. The baby was eventually adopted.

Controversy resulting from broken contracts between biological parents and surrogates is nothing new. A Florida woman signed a contract with a Cincinnati gestational carrier. The child the surrogate carried for the intended mother was conceived through the use of a sperm and egg donor. The gestational carrier, the intended mother and her fiancé signed an agreement in which the surrogate agreed to give up any “children born as a result of the surrogacy and that any child born to surrogate will be the intended mother’s child or children.”

The gestational carrier delivered premature twins born less than 28 weeks gestation. Sadly one of the twins died. Both the intended mother and the surrogate mother sued for custody of the surviving baby. The court initially stated that the surrogate was the mother since she delivered the child. The court stated however, that since the surrogate was not related genetically to the baby and a contract stated that the intended mother was the legal parent, custody of the baby was given to the intended Florida mother. The gestational carrier appealed. The Ohio Appellate Court awarded custody to the intended mother in 2010. The surrogacy agreement signed by the surrogate mother and the intended mother in 2007 was viewed as binding.

Surrogacy is prohibited in New York, Washington DC, Michigan and Arizona. California case law protects the rights of intended parents. State statutes do not address surrogacy. Florida statutes regulate surrogacy agreements. Intended parents must be at least 18 years old, married and heterosexual. The courts may see challenges to these laws by same sex couples in the future.

Even though California case law favors the intended parent, the rights of the gestational carrier and ethics became an issue in a 2001 case. A British surrogate hired by a California couple became pregnant with twins. The couple asked the surrogate to abort one fetus, because they only wanted one baby. The surrogate refused to abort a 13 week gestational age fetus. The babies were placed for adoption after a lot of litigation. The California courts made the intended parents pay for the surrogate’s medical bills. The court ruled that the gestational mother had the right to choose whether or not to terminate the pregnancy.

Another case worth mentioning is the Minnesota case involving same sex couples R. W.S. and B.C.F. The two men contracted a surrogate on an online volunteer support group for surrogates. An undisclosed amount of money was paid to a surrogate (the sister of B.C.F.). The surrogate’s egg was impregnated using the sperm of R.W.S. A healthy baby girl was born nine months later. B.C.F. the nonbiological father started proceedings to adopt the baby. The surrogate was to voluntarily terminate parental rights. A month later the surrogate told the couple that she wanted to keep the baby. Minnesota does not have a specific statute concerning surrogacy. The intended non-biologic parent is encouraged to adopt the baby produced from a surrogate birth and to start proceedings to terminate the surrogate’s parental rights. Initially the surrogate was given custody of the baby by the Minnesota court. In 2011, R.W.S. was granted custody by the court.

The most famous case surrogate case is that of baby M. In 1987, William Stern, whose wife suffered from multiple sclerosis, entered into a surrogate agreement with Mary Beth Whitehead in New Jersey. Mr. Stern’s sperm was used for artificial insemination. Ms. Whitehead was to terminate parental rights and Mrs. Stern would adopt the baby after delivery. Mr. Stern agreed to pay Mary Beth Whitehead $10,000 after the baby was born.

Mary Beth Whitehead refused to give the baby to the Sterns. William Stern filed a suit against the surrogate. Eventually custody was granted to William Stern. Mary Beth Whitehead was awarded visitation.

The baby “M” and the Minnesota surrogate cases disturbed the public, because most states do not have laws governing surrogacy. The industry is unregulated. This is new territory for states. Technological advances such in vitro fertilization have made surrogate births more accepted. The surrogate industry generates at least three billion dollars a year.

The American Bar Association suggested in 2008, that states adopt uniform surrogacy laws. The ABA believes such laws would protect the rights of children, “intended parents” and prevent the exploitation of surrogates. What do you think?