Surrogacy is the act of a woman gestating and birthing a baby for another woman (Anleu, 30). Examples of this phenomenon can be found in the Old Testament of the Bible.
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For Abraham and his wife Sarah to be able to have children one of their servants carried the child to term (Anleu, 30). Over the years advances in medical technology and social situations, the methods of surrogacy have changed. The possibilities include in vitro fertilization allows the mother to be genetically related to the child, or an individual could donate the eggs required for the pregnancy to occur therefore impregnating the surrogate mother becomes pregnant and delivers the child who is then given to the infertile couple (Anleu, 31).
In surrogate mother arrangements, a woman agrees to undergo a pregnancy for an infertile couple and relinquish that child to them at birth. While the ovum and sperm used in these pregnancies can have several different origins (Anleu, 33).
Surrogacy offers couples the ability to become parents when nature and medical science have not been able to assist them. Surrogacy also creates several legal and ethical questions that are slowly being resolved. These questions circle the traditional belief that the child’s genetic, legal, and social mothers are all the same individual while with the advances in medical technology and the different ways surrogacy can occur the child can have up to four mothers (Anleu, 30).
Even with the legal difficulties and possible questions over the actual parentage of the child or children in question the ability for surrogacy to continue provides couples who want to have children but are unable to; the ability to have a family. The final result of the surrogacy contracts and situation is worth all of the medical procedures and legal documentation that are necessary to assure that the child is placed with the family that has the desire and ability to care for the child in the best possible manner.
While this is a wonderful gift that one female can give to another the way the contracts are provided create the question in governmental circles of if this form of the contract requires prohibition or stringent regulation (Epstein, 2308). While the possibility of adoption would give a couple the ability to have a family, surrogacy allows the child to be genetically related to at least one of the parents with a simplified adoption process for the spouse. To adopt a child through the state, the family is exposed to scrutiny from social workers and an increased invasion of privacy, and the family situation is analyzed by an outsider who will then determine the suitability of the final family unit.
The concerns over the act of surrogacy began in the 1950s when medical research had advanced to the level that artificial insemination was a possibility that could increase a couple’s opportunities to have a biological child (Andrews, 31). With the increased ability of medical science to assist in reproductive health the public understanding and concern over the new medical practices resulted in legislation being presented that would ban this new technology (Andrews, 31). These proposals were never passed into law instead lawmakers after reviewing the process passed legislation that ensured that the individual who provided the sperm used in this procedure would be the legal parent of the child (Andrews, 31). However, the concern over this issue resulted in states creating various laws regulating this procedure with Alabama passing the first artificial insemination by donor law (Andrews, 31).
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In the 1980s a new medical concern was brought to the attention of lawmakers.
This was the issue of surrogate motherhood (Andrews, 31). The various states created proposals that would have placed restrictions on this medical procedure. Unfortunately, these proposals did not include provisions that clearly stated who the legal parents of the child would be after the birth of the child conceived through a surrogate agreement (Andrews, 31).
The 1980s were a decade in which the legislation of various states focused on the payments made to the surrogate as the reason for why this practice should be discounted. Several states created fines and prisons sentences for individuals and families who agreed to these contracts other states created laws that protected the surrogate’s parental rights should she decide to keep the child after birth (Andrews, 31).
While the 1980s were not a friendly time for surrogates and the families in which they were trying to help the increased social acceptance of the nontraditional types of families have also increased the social acceptance of surrogate mothers (Skinner and Kohler, 293). The changing issues with the biological methods of reproduction and increased social awareness of the public while providing social relief for the individuals who rely upon surrogacy have also created new legal protections for this medical procedure. The new laws are attempting to determine who has been awarded the right to be a parent through the legal system as well as what rights do the legal system gives to those parents (Skinner and Kohler, 293).
The two rules that are presented in family law that are typically used when determining parental rights are the results of several Supreme Court cases that provided legal precedents over the rights of families to provide care and education of the children without the interference of the state. The first of these rights include the right of the biological parents to raise the child as they choose in accordance with the entitlement of procreation (Skinner and Kohler, 293). This right was originally presented in the court case Meyer v. Nebraska in 1923 in which parents could choose the educational opportunities presented to the child was recently challenged in the Supreme Court case Wisconsin v. Oakley, 2001 in which the right for the educational and upbringing of their children was protected (Skinner and Kohler, 293). These two rulings set the precedents that the legal parents have the right to the child’s education and upbringing. This is important in surrogacy contracts because it limits the legal influence that the biological mother holds over the child.
The second rule established parenthood as being an exclusive right therefore one child can only have one set of legal parents at a time regardless of what role the individual plays in that child’s life (Skinner and Kohler, 293). This allows the surrogate mother contact with the child as it grows up but provides protection to the legal parents as they provide the primary care for the child.
Due to the importance of the contractual obligations that surrogacy demands the contracts must have the ability to be upheld in court (Epstein, 2308). The concern in legal circles over surrogacy contracts is that the parental rights of a child are more important than the purchasing of a commodity, and should not undergo the same legal regulation of a traditional commodity purchase (Epstein, 2308). The concern in the eyes of the public is that the surrogacy contracts result in the purchasing of a child when in fact the contracts create the legal documentation of which parent has the legal responsibility for the child.
An additional benefit that these contracts have is that they provide protection for both the birth mother and the potential parents against potential exploitation. While various governments have considered placing bans and restrictions on these practices any legal restrictions would simply force the practice of surrogacy into an unsafe situation. It is important that the legal system supports the role of the surrogate as well as protecting the rights of the family that required the service to establish their family.
Surrogacy is a wonderful gift that one woman can give to another and while social norms about reproductive health have continued to change and improve over the sixty years that assorted forms of assistance have been available these medical technologies must continue to be protected by the legal system. Without the legal protections for both the surrogate and the family, situations could occur that would damage an individual’s willingness to participate in this medical procedure.
Andrews, Lori B. “The Aftermath of Baby M: Proposed State Laws on Surrogate Motherhood.” The Hastings Center Report. 17.5 (1987): 31-40.
Anleu, Sharyn R. “Surrogacy: For Love but Not for Money.” Gender and Society. 6.1 (1992): 30-48.
Epestein, Richard E. “Surrogacy: The Case for Full Contractual Enforcement.” Virginia Law Review. 81.8 (1995): 2305-2341.
Skinner, Denise A., and Kohler, Julie K. “Parental Rights in Diverse Family Contexts: Current Legal Developments.” Family Relations. 4.4 (2002): 293-300.