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III. HISTORICAL CONTEXT AND OVERVIEW

There is no unified body of "law" concerning surrogacy. It is an area in a constant state of flux, where traditional family building approaches are being buffeted by newly-available technological procedures and by the decisions of infertile couples to act upon them.

Much of the change is technologically driven. In vitro fertilization and embryo transfer might have been envisioned by Aldous Huxley in the early part of this century (in less than favorable terms), but were not realized until quite recently.

Other changes are rooted in behavioral change, and are decidedly "low tech". An example is the artificial insemination of a surrogate who is the genetic mother of the child to be born, but who chooses, in accordance with pre-arranged agreement, to surrender the child to the sperm donor and his spouse to raise as their own child.

Obviously, artificial insemination is not of recent vintage; what has changed is the gender of the infertile party within the marriage. Statutes in place for decades in numerous states envision an infertile husband who (along with his wife) chooses to utilize donated semen to impregnate his fertile wife or use this process to increase the chances of a husband's (of marginally fertile sperm) impregnating his wife.

Only recently have couples realized that a third party to the marriage may agree to become impregnated with the semen of the fertile husband and ultimately allow the in fertile wife to treat the child to be born as her own offspring. Curiously, this has not always been the case. Two surrogacy arrangements were documented in the Old Testament. Sarah, wife of Abraham, was infertile, and enlisted her maid, Hagar, to bear Abraham's child. Genesis, Chapter 16. Isaac and his barren wife, Rachel, relied upon Rachel's servant, Bilbah, to bear Isaac's child. Genesis, Chapter 30.

As a consequence, traditional "laws on the books" concerning paternity, maternity (if these laws address that issue at all),artificial insemination, issuance of birth certificates, parental rights and obligations, informed consent for medical procedures, "Roe v. Wade" questions, medical insurance, infectious disease, pre- and post-natal support obligations, to name but a few, are wholly inadequate.

The law on these issues has customarily been determined on a state by state basis, with little federal intervention. Certain acts in the divorce and family law context, such as the Uniform Reciprocal Enforcement of Support Act, the Uniform Child Custody Jurisdiction Act, and the Interstate Compact on the Placement of Children, were designed to address common interstate issues where it would be beneficial to have reciprocal enforcement mechanisms among the various states. These acts have been adopted by a number of the states.

However, issues touching upon surrogacy have not been the topic of any generally adopted "uniform acts", and as a consequence, the law of surrogacy is a patchwork quilt, varying considerably from state to state.

While some states have established laws permitting surrogacy, and some have passed laws outlawing surrogacy, the majority of states have yet to address the issue(s) at all. In these states, lawyers representing families opting for surrogacy have, of necessity, taken innovative approaches.

Hence, it must be emphasized that the general observations in this source are not uniformly applicable to any particular state. Furthermore, the treatment of these issues is superficial at best and does not provide definitive answers in any particular state.

Matters of this gravity require that you seek competent legal counsel whenever surrogacy is contemplated.

Pregnancy and childbirth are complicated enough under traditional legal analysis. However, when the pregnancy occurs in the uterus of a stranger to the marriage (i.e., when the surrogate carries the child), the inherent complexities expand at an exponential rate.

The couple who will ultimately be the parents of the child has a decided interest in what is occurring in the uterus of a stranger to their marriage, the surrogate. The usual expectations concerning privacy during the pregnancy are "out the window".

For example, other individuals are keenly interested in the menstrual cycle of the surrogate, and if and when she becomes pregnant. Medical evaluation and screening is essential, so fertility experts will thoroughly examine the potential surrogate to find out if she is an appropriate candidate, in general, for pregnancy and, in specific terms, whether she is an appropriate candidate to bear the child of the infertile couple. Psychological screening and counseling of the potential surrogate is essential in order to discern not only whether the surrogate is an appropriate candidate, but also to assist the surrogate and the infertile couple with coping with the pregnancy, as well as the post-partum separation following the birth of the child.

Everyone contributing a genetic component to the pregnancy(and their sexual partners) needs to be thoroughly evaluated for a sexually transmitted disease, and the genetic history of both the egg and sperm donor must be evaluated for hereditary disease or conditions.

The surrogate must agree to abstain from sexual relations around the time of embryo transfer or artificial insemination, and the surrogate must furthermore agree to abstain from drugs, alcohol, and tobacco consumption during the course of the pregnancy, as well as to comply with the nutritional dictates of the obstetrician. Strenuous exercise or work must often be avoided following embryo transfer.

While a pregnant woman would customarily expect to consult with her physician in private, the surrogate may expect one or both of the infertile couple will accompany her to obstetric appointments if they are in the same local area, and the surrogate's medical records and test results would be fully available to the infertile couple.

The thorniest considerations address "Roe v. Wade" questions when amniocentesis or other tests are performed. The surrogate should expect the infertile couple to be present at birth, and the most intimate details of the pregnancy will be explored at court proceedings where it is established who are the ultimate parents of the child.

Privacy is a luxury unavailable in the surrogacy context. However, this is not to say that those involved in the surrogacy should be subjected to unwarranted public scrutiny. Anti-disclosure provisions concerning publicity are paramount, and legal proceedings should be closed to the public (to the full extent possible), and court files should be sealed to unwarranted and prying eyes, to the fullest extent possible.

This is simply one area of consideration, and provides some indication as to the complexities involved.

It is most understandable to consider the steps involved in chronological order (although the actual order of occurrence may vary from the template which follows):

IV. MEDICAL/INFERTILITY PRACTITIONERS

Author: Mark A. Johnson

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