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Beyond Baby M pp 201-220 | Cite as

Surrogate Motherhood Agreements

The Risks to Innocent Human Life
  • James BoppJr.
Chapter
Part of the Contemporary Issues in Biomedicine, Ethics, and Society book series (CIBES)

Abstract

The New Jersey case, In re Baby M.,1 forced upon the public consciousness the painful tensions of surrogate motherhood arrangements. The Office of Technology Assessment (OTA) of the United States Congress estimates in a recent report that 600 surrogacy arrangements have been made to date, in the United States alone.2

Keywords

Down Syndrome Supra Note Spina Bifida Prenatal Testing Unborn Child 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes and References

  1. 1.
    537 A.2d 1227 (N.J. 1988).Google Scholar
  2. 2.
    Office of Technology Assessment, Infertility: Medical and Social Choices—Summary 11 (1988).Google Scholar
  3. 3.
    Office of Technology Assessment, Infertility: Medical and Social Choices—Summary 11 (1988).Google Scholar
  4. 4.
    Office of Technology Assessment, Infertility: Medical and Social Choices—Summary 11 (1988).Google Scholar
  5. 5.
    Office of Technology Assessment, Infertility: Medical and Social Choices—Summary 11 (1988).Google Scholar
  6. 6.
    There may be public policy reasons for opposing surrogacy arrangements. These are not dealt with here. The author addresses the issue of surrogacy only from the perspective of protecting innocent human life, both unborn and newly born.Google Scholar
  7. 7.
    Brophy, K. M. (1981–82) Surrogate mother contract to bear children, J. Fam. L. 20, 263, 266, 291. The natural mother is a “surrogate” only in the sense that she is a substitute for the natural father’s wife, who, presumably, cannot bear children herself. Of course, there may be motivations for the natural father’s wife to procure a surrogate other than nonfertility. The natural father’s wife is not a party to the contract.Google Scholar
  8. 8.
    In the Baby M case, Provision 13 of the contract declared: MARY BETH WHITEHEAD, Surrogate, agrees that she shall not abort the child…except, if in the professional medical opinion of the inseminating physician, such action is necessary for the physical health of MARY BETH WHITEHEAD or the child has been determined by said physician to be physiologically abnormal. MARY BETH WHITEHEAD further agrees, upon request of said physician, to undergo amniocentesis…or similar tests to detect genetic and congenital defects. In the event said test reveals that the fetus is genetically or congenitally abnormal, MARY BETH WHITEHEAD, Surrogate, agrees to abort the fetus upon demand of WILLIAM STERN, Natural Father…If MARY BETH WHITEHEAD refuses to abort the fetus upon demand of WILLIAM STERN, his obligations as stated in this Agreement shall cease forthwith, except as to obligations of paternity imposed by statute. In re Baby M, 537 A.2d at 1268 (Appendix B).Google Scholar
  9. 9a.
    Johnson, S. H. (1987) The Baby “M” Decision: Specific performance of a contract for specially manufactured goods, S. Ill. L.J. 11, 1339–1342,Google Scholar
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    1348 Bitner (1985) Womb for rent: A call for Pennsylvania legislation legalizing and regulating surrogate parenting agreements, Dick. L. Rev. 90, 227, 235.Google Scholar
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    O’Brien, S. (1987) The itinerant embryo and the neo-nativity scene: Bifurcating biological maternity, Utah L. Rev. 1, 29, 33.Google Scholar
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    In Orwell’s Oceania, the Ministry of Truth (the Ministry of Propaganda) had three slogans: “War is Peace. Freedom is Slavery. Ignorance is Strength.” G. Orwell, 1984 (1949). The official language, “Newspeak,” likewise, attempted to restructure thought by redefinition and elimination of terms incompatible with the preferred orthodoxy. O’Brien, S. (1987) The itinerant embryo and the neo-nativity scene: Bifurcating biological maternity, Utah L. Rev. 1, 29, 33. (Appendix, “The Principles of Newspeak”Google Scholar
  13. 12.
    It is noteworthy that, even in Roe v. Wade, 410 U.S. 113(1973), the Supreme Court opinion that removed state-imposed barriers to women’s freedom to choose abortion, employed both the term “unborn children” and “pregnant mother” in the course of its discussion of the competing interests. It also spoke of paternal interests, which it noted were not asserted, and, therefore, were not balanced by the Court against the pregnant mother’s right to choose abortion. O’Brien, S. (1987) The itinerant embryo and the neo-nativity scene: Bifurcating biological maternity, Utah L. Rev. 1, 29, 33. at 165 n.67Google Scholar
  14. 13a.
    Marmion, P. (1987) The California alpha-fetoprotein screening program, Linacre Q 54, vol. 1 77, 87. Although followup tests are commonly used to reduce the risk of false negatives and positives, the risk remains substantial. Moreover, some women have been so frightened by the results of their first positive test “that they went off and obtained an abortion then and there.”Google Scholar
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    Marwick, C. (1983) Controversy surrounds use of tests for open spina bifida, JAMA 250, 576, 577.Google Scholar
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    Annas, G. (Dec. 1985) Is a genetic screening test ready when the lawyers say it is? Hastings Cent. Rep. 15, 6, 16.CrossRefGoogle Scholar
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    Nolan-Haley, J. M. (Spring 1982) Amniocentesis and human quality control, Human Life Rev. 8, 51, 53;Google Scholar
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    see also Marmion, P. (1987) The California alpha-fetoprotein screening program, Linacre Q 54, vol. 177, 87.Google Scholar
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    Friedman, J. M. (1974) Legal implications of amniocentesis, U. Pa. L. Rev. 123, 92, 103CrossRefGoogle Scholar
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    NICHD National registry for amniocentesis study group, (1976) midtrimester amniocentesis for prenatal diagnosis, JAMA 236, 1471, 1472CrossRefGoogle Scholar
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    Manganiello, P. D., Byrd, J. R., and McDonough, P. T. Tho. (1979) A report of the safety and accuracy of midtrimester amniocentesis at the Medical College of Georgia: Eight and one half years experience, Am. J. Obstet. Gynecol. 134, 911, 913.PubMedGoogle Scholar
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    CF Editorial (1987) Routine prenatal genetic screening, N. Engl. J. Med. 317, 1407, 1408 (noting that “serious errors” may be made in testing for Down syndrome with ultrasound screening).CrossRefGoogle Scholar
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    Friedman, J. M. (1974) Legal implications of amniocentesis, U. Pa. L. Rev. 123, 92, 103CrossRefGoogle Scholar
  24. 17b.
    NICHD National registry for amniocentesis study group, (1976) midtrimester amniocentesis for prenatal diagnosis, JAMA 236, at 103. A survey of the literature shows no reported improvement in sex determination.Google Scholar
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    Friedman, J. M. (1974) Legal implications of amniocentesis, U. Pa. L. Rev. 123, 92, 103CrossRefGoogle Scholar
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    Nolan-Haley, J. M. (Spring 1982) Amniocentesis and human quality control, Human Life Rev. 8, at 54.Google Scholar
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    Nolan-Haley, J. M. (Spring 1982) Amniocentesis and human quality control, Human Life Rev. 8, at 55.Google Scholar
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    Capron, A. M. (1979) Tort liability in genetic counseling, Colum. L. Rev. 79, 618, 626–627.Google Scholar
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    Marmion, P. (1987) The California alpha-fetoprotein screening program, Linacre Q 54, vol. 177, at 82. See also references cited by Marmion.Google Scholar
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    Berman v. Allan, 80 N.J. 421, 430, 404 A.2d 8, 12–13 (1979).Google Scholar
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    Fletcher, J. C. (1978) Prenatal diagnosis: Ethical issues, in Encyclopedia of Bioethics (Reich, R., ed.) 3, p. 1343.Google Scholar
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    Wilson, Hogge, and Golbus (1987) Analysis of chromosomally normal spontaneous abortions after chorionic villus sampling, J. Repro. Med. 32, 25.Google Scholar
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    Friedman, J. M. (1974) Legal implications of amniocentesis, U. Pa. L. Rev. 123, 92, 103CrossRefGoogle Scholar
  34. 27a.
    Hickman v. Group Health Plan, Inc., 396 N.W. 2d 10, 11, 14 (Minn. 1986);Google Scholar
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    see also, Fineberg, K. S. and Peters, J. D. (Feb. 1984) Amniocentesis in medicine and law, Trial at 54, 59 (concerning major chromosomal abnormality, anencephaly, or spina bifida, “the odds that a 35- to 39-year-old woman will not have such a child are more than 200 to one without the test”).Google Scholar
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    Friedman, J. M. (1974) Legal implications of amniocentesis, U. Pa. L. Rev. 123, 92, 103CrossRefGoogle Scholar
  37. 29.
    537 A.2d at 1268 (Appendix B).Google Scholar
  38. 30.
    Note (1982) The surrogate motherhood contract in Indiana, Ind. L. Rev. 15,807,822.Google Scholar
  39. 31.
    In re Baby M, 217 N.J.Super. 313, 525 A, 2d 1128 (1987).Google Scholar
  40. 32.
    Brophy, K. M. (1981–82) Surrogate mother contract to bear children, J. Fam. L. 20, at 265.Google Scholar
  41. 33.
    Newsweek, Jan. 19, 1987 at 49.Google Scholar
  42. 34.
    In re the Treatment and Care of Infant Doe, No. GU-8204–004A, slip. op. (Monroe County Cir. Ct., Ind. April 12, 1983), Petition for Writ of Mandamus and Prohibition, denied sub nom. State of Indiana ex rel Infant Doe v. Monroe, 104 S. Ct. 394 (1983), reprinted in Issues in Law and Medicine 2, 77 (1986). In this case, the child was born with Down syndrome and blockage of the esophagus, which prohibited the intake of nutrients by mouth. Although the life-threatening blockage was easily remedied by routine surgery, the parents elected instead to allow the child to starve to death, presumably because they did not want a child with Down syndrome. Court appeals on behalf of the child were unavailing. Attempts to secure legal protection for neonates with disabilities by enforcement of §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, were struck down by a plurality of the U.S. Supreme Court in Bowen v. American Hospital Association. 106 S. Ct. 2101 (1986).Google Scholar
  43. 35.
    410 U.S. 113.Google Scholar
  44. 36.
    Jane Doe v. John Smith, No. 84 A01–8804-CV-00112, slip op. (Ind. App. 1 Dist. Oct. 24, 1988) (trial court reversed), appeal denied, No. 84A01–8804-CV112, slip op. (Ind. Feb. 9, 1989), cert. denied,— U.S.—(1989). The other was reversed by the Indiana Supreme Court and is now before the United States Supreme Court on appeal. Conn v. Conn. No. 73S01–8807-CV-631 (Ind. July 15, 1988) (Order affirming the court of appeals and adopting its opinion, reported at 525 N.E. 2d 612 (1988), cert. denied,—U.S.—(1989).Google Scholar
  45. 37.
    217 N.J. Super. 313, 525 A.2d 1128.Google Scholar
  46. 38.
    537 A.2d 1227.Google Scholar
  47. 39a.
    D’Aversa, C. Y. (1987) The right of abortion in surrogate motherhood agreements, N. Ill. L. Rev. 7, 1;Google Scholar
  48. 39b.
    Note (1987) Rumplestiltskin revisited: The inalienable rights of surrogate mothers, Harv. L. Rev. 99, 1936 (1986);Google Scholar
  49. 39c.
    Simons, K. W. (1980) Rescinding a waiver of a constitutional right, Geo. L. J. 68, 919.Google Scholar
  50. 40.
    H.F. 534 § 10(1) (i), Minn. (1983).Google Scholar
  51. 41.
    H.B. 1009 § 9(a) (9), Haw. (1983).Google Scholar
  52. 42.
    Comm. B. 5316 § 3(9), Conn. (1983).Google Scholar
  53. 43.
    Although Roe posited limits the state might impose, in subsequent cases virtually all state regulations imposing even modest burdens on the woman seeking an abortion have been struck down. Moreover, the definition of “health” employed in Doe v. Bolton, 410 U.S. 179, 192 (1973), is so broad that a woman can readily find a physician to perform an abortion, even after viability, for a “health” reason.Google Scholar
  54. 44a.
    Note (1987) Surrogate motherhood legislation: A sensible starting point, Ind. L. Rev. 20, 879, 895;Google Scholar
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    Note (1986) Rumplestiltskin revisited: The inalienable rights of surrogate mothers, Harv. L. Rev. 99, 1936.Google Scholar
  56. 45.
    Note (1987) Surrogate motherhood legislation: A sensible starting point, Ind. L. Rev. 20, at 880.Google Scholar
  57. 46.
    A strong case may be made, although it is beyond the scope of this paper, for the proposition that the presence of a surrogacy arrangement profoundly alters the nature and weight of the interests that the Supreme Court found compelling in Roe as a basis for bestowing constitutional protection to the abortion decision.Google Scholar
  58. 47.
    The Spina Bifida Association of America, Rockville, MD, confirmed, in a phone conference on July 5, 1988, that there is a waiting list of persons wishing to adopt children born with spina bifida. The National Down Syndrome Congress, Park Ridge, IL, confirmed in a phone conference, on June 23, 1988, that there is currently a waiting list of persons desiring to adopt children with Down syndrome.Google Scholar
  59. 48.
    The Spina Bifida Association of America, Rockville, MD, confirmed, in a phone conference on July 5, 1988, that there is a waiting list of persons wishing to adopt children born with spina bifida. The National Down Syndrome Congress, Park Ridge, IL, confirmed in a phone conference, on June 23, 1988, that there is currently a waiting list of persons desiring to adopt children with Down syndrome. Note (1987) Surrogate motherhood legislation: A sensible starting point, Ind. L. Rev. 20, at 880.Google Scholar
  60. 49.
    No. 83–6522 (E.D.Mich. 1988). Over 155 pleadings have been filed in support of claims and cross-claims, and both sides are awaiting the outcome of their respective motions for summary judgment. (Telephone conversation with judicial clerk, June 2, 1988).Google Scholar
  61. 50a.
    Andrews, L. B. (1984) The stork market: The law of the new reproductive technologies, A.B.A.J. 70, 50, 56;Google Scholar
  62. 50b.
    see also D’Aversa, C. Y. (1987) The right of abortion in surrogate motherhood arrangements, N. Ill. L. Rev. 7, 1, 31 n. 175.Google Scholar
  63. 51a.
    Andrews, L. B. (Oct./Nov. 1987) The Aftermath of Baby M, Hastings Cent. Rep. at 31, 37. California provides that, if the child has a disease or defect caused by the surrogate in violation of the contract, then the intended child-rearing couple need not take custody.Google Scholar
  64. 51b.
    Andrews, L. B. (1984) The stork market: The law of the new reproductive technologies, A.B.A.J. 70, 50, 56;Google Scholar
  65. 51c.
    see also D’Aversa, C. Y. (1987) The right of abortion in surrogate motherhood arrangements, N. Ill. L. Rev. 7, 1, 31 n. 175.Google Scholar

Copyright information

© The Humana Press Inc. 1990

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  • James BoppJr.

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