L_C ItL \8/3'. Rp+.#?7~ Lgggg 87-423.A Government Publications Unit AUG 1 7 1994 W h‘ ~ . . as mgtrin flmverszty L,b,a,,-es outs. MO 63130 CRS REPORT FOR CONGRESS OVERVIEW OF LEGAL AND CONSTITUTIONAL ISSUES INVOLVED IN SURROGATE MOTHERHOOD 3; E; ..:a.....:! *g_.£’*” i . E‘; 23...! ii’ ~._. v. .‘ ff ! '°'\'\‘ _ rwg, 3% J£_A' 15:. ‘$5 ,3}, _§, « fin I“ ' V ‘ " - W x:3‘w E ‘ ‘K ¢g.‘Qf'\ .1 1 ;':mr~»; L J N x V IZRSXT By Rita Ann Reimer Legislative Attorney American Law Division May 11, 1987 3-‘( 7:.‘-‘<3 mm Inf sburi - Colu UN Willi! O10-10393983 The Congressional Research Service works exclusively for the Congress, conducting research, analyzing legislation, and providin ' formation at the request of committees, Mem- " - eir staffs. ervice makes such research available, without parti- e as 5* s, i many forms including studies, reports, compila- s, and background briefings. Upon request, CRS _ mmittees in analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Service’s senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise. ABSTRACT This report discusses the legal and constitutional issues involved in surrogate motherhood. While it is concerned primarily with the New Jersey district court's decision in the Baby M case, which upheld the validity and ordered specific performance of a surrogacy contract, it notes that this decision has limited precedential value and that legal arguments can be made both for and against many of its conclusions. EXECUTIVE SUMMARY Recent advances in reproductive technology have now made it possible for many previously-infertile couples to become parents. However, the law has not kept pace with this evolving technology, so many legal and constitutional questions raised by use of these new procedures remain unresolved. This report is concerned specifically with surrogate motherhood, a procedure by which a woman is impregnated with the semen of a man who is not her husband and agrees to turn over the child born as a result of that action to the child's father and his wife, usually in exchange for financial consideration. National attention has been focused on this procedure as a result of the Baby M case, in which a surrogate mother refused to surrender the child to the father and his wife. A New Jersey district court upheld the validity of the surrogate mother contract and ordered its specific performance; that is, the child was ordered to remain in the custody of the father and his wife, the surrogate mother's parental rights were terminated, and the father's wife was allowed to adopt the baby. In reaching this conclusion, the New Jersey district court enthusiastically endorsed surrogacy contracts, finding them to be in many instances the only way in which a couple can exercise what the judge in that case believes is its constitutional right to have a child to which at least one parent is biologically related. While the Supreme Court's right of personal privacy cases to date have involved only coital reproduction, the Baby M court , found no reason to distinguish between coital and non-coital reproduction. The court also held that permitting artificial insemination (which is legal in all states) but not surrogate motherhood could violate constitutional equal protection requirements. However, the crux of the opinion, as is true in all cases involving child welfare, turned on the "best interests" of the child. Before deciding that specific performance of the contract was appropriate, the court examined various factors to determine that the child would be better off if she were to be raised by the biological father and his wife, rather than by the surrogate mother and her husband. There is a small but growing body of case law on this subject (the Baby M case is now on appeal to the New Jersey Supreme Court); and state legislatures are reportedly considering a wide range of legislation, from outright prohibition to endorsement with only minimal restrictions. Because the issue allegedly involves constitutionally protected interests, the Supreme Court may in time choose to issue national guidelines in this area. S OVERVIEW OF LEGAL AND CONSTITUTIONAL ISSUES INVOLVED IN SURROGATE MOTHERHOOD Introduction Recent advances in reproductive technology have now made it possible for many previously-infertile couples to become parents. However, the law has not kept pace with the evolving technology in this area, so many legal and constitutional questions raised by use of these new procedures remain unresolved. This report is concerned specifically with surrogate motherhood, a procedure by which a woman is impregnated with the semen of a man who is not her husband and agrees to turn over the child born as a result of that action to the child's father and his wife.1 Although circumstances of particular cases can vary, the parties generally sign a contract setting out their various rights and responsibilities, under which the birth or "surrogate" mother agrees to relinquish all rights to the child after birth, in exchange for a fee (typically $10,000) and payment of all legal and medical expenses. The father's wife is usually not a party to this contract, to avoid possible violation of any prohibitions against "baby selling," but adopts the child as soon as possible after birth. Following this action, unless otherwise provided by contract, the surrogate mother has no legal right to further contact with the child. National attention has now focused on this situation because of the "Baby 1 Occasionally a surrogate mother may bear a child for a single man, or an unmarried couple. However, except as noted, this report is concerned with the more usual situation, where the surrogate agrees to bear a child for a married couple in which the wife is unable or unwilling to have children. CRS—2 M" case in New Jersey, in which a surrogate mother refused to surrender her daughter after birth and thus breached the contract she had signed requiring her to do so. When the father sued to enforce the contract, the New Jersey Superior Court upheld it as valid and required specific performance; that is, the mother was forced to relinquish the child and her parental rights were I terminated.2 In the Matter of Baby "M" has been appealed to the New Jersey Supreme Court, which is scheduled to hear arguments on August 14, 1987. The New Jersey Supreme Court's decision, when it is issued, will be binding only in that state. Not until the United States Supreme Court rules on the issues presented, if then, will there be national standards and precedents. However, the Baby M case is important because it is the first comprehensive opinion which directly addresses this situation. New reproductive technologies raise not only legal, but moral, ethical, theological and sociological questions as well. This report is concerned only with legal and constitutional issues and touches on these others only to the extent this is required to deal with the legal questions. I Background The closest situation to surrogate motherhood for which there is legal precedent is artificial insemination, in which a woman is impregnated using medical procedures with either the semen of her husband (artificial insemination-husband, or AIH), or another donor (artificial insemination-donor, or AID). If the husband's semen is mixed with that of another donor, this is known as artificial insemination-confused, combined or commingled, or AIC. 2 In the Matter of Baby "M", No. FM-25314-86E (N.J. Super., Chancery Div., Fam. Pt., March 31, 1987). CRS—3 AID and AIC donors are usually anonymous and are paid modest fees for their services. When the child is born, the mother's husband is listed as the father on the birth certificate. In many cases the entire process is a secret .to everyone but the couple involved and the attending physician, although growing knowledge about the role of heredity in a wide range of medical conditions has led to recommendations that this anonymity be ended.3 Historically a child born as the result of artificial insemination was deemed illegitimate (except of course in AIH cases and AIC cases where the husband was determined to be the father.) The wife's husband was not legally responsible for the child's support, and the child had no right of inheritance from the husband.4 However, in recent years pertinent case and statutory law has uniformly held that the child should be considered legitimate, with all accompanying rights and responsibilities, if the husband consented to the insemination.5 The view that artificial insemination constitutes adultery has similarly been rejected.6 Because of the generally secret nature of artificial insemination, many questions which arise with regard to surrogate motherhood have not come up in artificial insemination cases. For example, there is no need to terminate the biological father's parental rights, or for the woman's husband to adopt the child. There is usually no contact, or contract, between the donor and the 3 E.g., Wadlington, "Artificial Insemination: The Dangers of a Poorly Kept SeCret," 64 NW0 UoLo Reva 771 (l970)0 4 Green and Long, Marriage and Family Law Agreements § 502 (1985, 1986 Supp-) 5 Andrews, "The Stork Market: The Law of the New Reproduction Technologies," 70 ABA J. 50 (Aug. 1984). 6 Green and Long, supra n. 4, § 5.03. CRS-4 married couple; rather, the semen is donated to a "sperm bank" where, in many cases, not even the institute's personnel know the donor's identity. The sums of money involved are relatively small; and the pregnancy is treated as if the wife had been impregnated by her husband should she miscarry, decide to abort, or give birth to a handicapped child. Surrogate motherhood contracts typically provide that the mother will not have sexual intercourse with her husband (or any other man) while she is trying to become pregnant by the donor. While financial arrangements vary, most set out a schedule of payments should the mother miscarry or give birth to a stillborn child, in addition to the payment of all medical and legal expenses. The father has the right to demand that the mother undergo amniocentesis to determine if the fetus is deformed, and can insist that the mother have an abortion based on the results of that test.7 The father is usually thought obligated to accept a physically or mentally deformed child, although this may not be specifically spelled out in the contract and is one of many troublesome possibilities which have not yet been fully addressed either by legislatures or the courts.8 Surrogate mother arrangements are sometimes handled informally, where all . the parties know each other (e.g., a woman may decide to bear a child for her infertile sister). Many of these are thought to operate completely outside the law with regard to such matters as which names go on the birth certificate, the need for adoption and/or the termination of parental rights, and any financial arrangements which might be involved. 7 This is the only portion of the surrogate mother contract that the Baby §_court found invalid. See discussion infra p. 15. 8 Trafford, "Baby M and The Fitness Doctrine -— What If She Had Been Born with a Disability?" Washington Post, Health Section, p. 7 (April 7, 1987). CRS-5 Also, advancing technologies are likely to present even thornier controversies in the future. For example, it is now possible to fertilize an egg outside the body, and use this to impregnate a surrogate mother if the biological mother for some reason cannot carry a child. Also, embryo transplants may in time make it possible for women with histories of early miscarriages to become pregnant, after which the embryo is moved to the womb of another woman who carries and gives birth to the child. The rights of a woman who gives birth in this situation would seem to be financial only, in that she is not the biological mother of the child; however, this, too, is unsettled and likely to lead to future litigation. Other Caselaw As already noted, Baby M contains the first comprehensive discussion of many of the pertinent issues. However, there is a small body of case law which also has some bearing on this situation. In Doe v. Kelly,9 a Michigan couple challenged the constitutionality of several Michigan adoption statutes which they claimed prohibited their entering into a surrogate motherhood contract. The laws involved prohibited the exchange of money or other consideration in connection with adoption and related proceedings. The Michigan Court of Appeals discussed in di££a_the constitutional question presented, finding that the plaintiffs’ desire to change the legal status of a child born of a surrogate mother through use of the adoption code not to be "within the realm of fundamental interests protected by the right to privacy from reasonable governmental regulation."1O 9 106 Mich. App. 169, 307 N.W.2d 438 (1981), cert denied, 459 u.s. 1183. (1983). 10 307 N.W.2d at 441. CRS—6 However, it also held that the challenged laws did not "directly prohibit [the couple] from having the child as planned."11 In Sherwyn and Handel v. California Department of Social Services,12 California attorneys representing couples involved in surrogate motherhood arrangements sought a declaratory judgment attacking the validity of California's artificial insemination law13 as it applies to surrogate mothers. A California appellate court held that the lawyers did not have standing to challenge the statute, although it indicated that parties to surrogate contracts would have standing and expressed "grave doubts" that the challenged law applied to most surrogate arrangements.14 In what to date is the leading surrogate mother case, the Kentucky Supreme Court held in Surrogate Parenting Associates v. Commonwealth ex rel. Armstrong15 that that State's prohibition against purchasing a child for the purpose of adoption16 does not apply to surrogate mother contracts, where an agreement to bear a child is entered into before the child is conceived. .The case arose after the Kentucky Attorney General sought to revoke the corporate charger of Surrogate Parenting Associates, Inc. [SPA] on grounds of abuse and misuse of its corporate powers in a manner detrimental to the interest and welfare of the state and its citizens, because of its involvement in surrogate parenting. The Supreme Court of Kentucky found that the adoption code did not 11 £1, 12 218 Cal. Rptr. 778, 173 Cal. App. 3d 52 (1985). 13 Cal. Civil code § 7005; Cal. Evid. Code § 621. 14 218 Cal. Rptr. at 781-82. 15 704 s.w.2d 209 (Ky. 1986). 16 Ky. Rev. Stat. § 199.590(2). CRS—7 specifically apply to surrogate contracts, and declined to so extend it in the absence of any legislative indication of such an intent. However, in reaching this conclusion, the court considered the situation where a surrogate mother might change her mind following conception, and reached a different conclusion in this regard than did the Baby M court. Kentucky mothers who agree prior to the birth of a child to place that child for adoption have until 5 days following the child's birth to reconsider that decision,17 and the court held that this law takes precedence over the parties‘ surrogate parenthood contractual commitments. Should a surrogate mother decide not to relinquish the baby, she would not be entitled to any of the money which she had been promised, and she would be in the same position vis-a-vis the child and the biological father as any other mother with a child born out of wedlock: "The parental rights and obligations between the biological father and mother, and the obligations they owe to the child, would then be the rights and obligations imposed by pertinent statutes rather than the obligations imposed by the contract now violated."18 Thus a man entering into a surrogate parenting contract in Kentucky should be advised that the surrogate mother has until 5 days following the birth of the child to change her mind about complying with the contract and, if she chooses to keep the child, he will be responsible for its support to the same extent as if he had fathered an illegitimate child in the traditional manner. A case which is now pending in the Michigan state court system involves a surrogate contract which did not work out as planned. The plaintiff in Doe v. Keane entered into a surrogate motherhood contract and subsequently gave birth 17 gg, §§ 199.eo1(2), 199.500(6). 18 704 S.W.2d at 213. CRS—8 to a premature infant who died immediately after birth. In a negotiated settlement between the parties, she received $7,000 (as opposed to the $10,000 she was to receive if she carried the child to term, and $1,000 if she miscarried in the 5th, 6th, or 7th month of pregnancy). Ms. Doe is now suing Noel Keane, the leading attorney advocate of surrogate motherhood who handles many of these contracts, as well as the physicians, psychologists and other involved in her case, alleging a variety of %malpractice and negligence claims. The United States District Court for the Western District of Michigan recently found no federal basis for these claims, but that court specifically stated that its dismissal was without prejudice to her state court claims19 where a companion case is proceeding. Facts of the Baby M Case The facts of the Baby M case are complex, and the text of the district court's decision should be consulted if additional information is required. Briefly, Mary Beth Whitehead and William Stern entered into a standard surrogate parenting agreement in February 1985. Under terms of the agreement, Mrs. Whiteheadwas to receive $10,000 for giving birth to a full-term baby. Richard Whitehead, Mrs. Whitehead's husband, acknowledged that he refused to consent to the artificial insemination of his wife, so that he was not to be considered the father of the child born to his wife. Mrs. Stern, the prospective adoptive mother, was not a party to the contract to insure that no 19 No. G86~868 CA5, F.2d (W.D. Mich., Apr., 15, 1937). Ms. Doe raised both Thirteenth Amendment (prohibition of slavery) and Fourteenth Amendment (due process) claims. However, the court found it well established that the Thirteenth Amendment does not allow for independent, private causes of action; and that there was no "state action" involved sufficient to trigger Fourteenth Amendment protection. This lack of state action was also held to make the federal civil rights laws, 42 U.S.C. §§ 1981, 1983, and 1985, inapplicable in this case. \ CRS-9 prohibitions against "baby selling," or the payment of money in connection with an adoption, were violated. The child, a daughter, was born on March 27, 1986. Mr. and Mrs. Whitehead signed an acknowledgment of Mr. Stern's paternity prior to the child's birth, but entered Mr. Whitehead's name as the father on the birth certificate as well as the name "Sara Elizabeth" rather than "Melissa Elizabeth," the name selected by the Sterns. Shortly after the child's birth, Mrs. Whitehead turned her over to the Sterns, but became despondent and prevailed upon the Sterns to let her have the child back for a week. After the week was over, Mrs. Whitehead refused to return the child, and the Sterns eventually obtained a temporary court order giving them custody of the child. As the police were attempting to enforce this order, Mrs. Whitehead passed the child out a back window to her husband, and the family fled to Florida for several months. Eventually they were located, returned to New Jersey, and returned the child to custody of the Sterns. The Baby M Decision In the ensuing lawsuit, the New Jersey district court held that the surrogate mother contract was valid, and that the appropriate remedy for its breach was specific performance (i.e., Mrs. Whitehead's parental rights were terminated and Mrs. Stern was allowed to adopt the baby). Had the contract been held invalid, the case would have reverted to a standard custody case, with the decision based on the "best interests of the child" as to which parent would have custody and the other rights and responsibilities involved. A major portion of the lengthy (121 p.) opinion by Judge Harvey Sorkow summarizes the testimony presented as to the benefits of surrogate motherhood in providing the only possible way for some couples to have children to which they are biologically related, or to have children at all because of the CRS-10 lengthy waiting periods for adoption; as well as testimony presented on behalf of all parties as to how Baby M's best interests would be served in the final decree. In evaluating this evidence, Judge Sorkow clearly found that the child's best interests would be met by the Sterns, whom he found to be a loving couple who would provide a stable environment, opportunities for higher education (both of the Sterns hold Ph.D.'s and Mrs. Stern is a medical doctor), and other resources not available with the Whiteheads. In particular, he found Mrs. Whitehead to be highly emotional, citing threats to kill the baby and herself rather than return the baby to the Sterns; her claim that her husband was in fact the child's father, even though he had had a vasectomy some years previously; and numerous instances of "impulsive" behavior, such as the flight to Florida and her removal of her son from public school without consulting his teachers or other interested parties. In addition, the Whiteheads had had serious marital difficulties and financial difficulties, including bankruptcy; Mrs. Whitehead was a high school dropout, an action which Judge Sorkow felt demonstrated her disregard for the value of education; and Mr. Whitehead had long-standing problems with alcohol. In his decision, Judge Sorkow first noted, "There can be no solution satisfactory to all in this kind of case. Justice, our desired objective, to ithe child and the mother, to the child and the father, cannot be obtained for both parents."20 Thus, his stated desire was to achieve justice for the child. In upholding the surrogate mother contract as valid, the court explained that the parties to this litigation, with great joy and expectation, entered into a surrogate arrangement. It was an arrangement where both-— 20 Slip op. at 1. CRS-ll the prospective family and the surrogate mother—- wanted the child; albeit, for different purposes... The couple sought to bring into existence a child by conscious pre-arrangement which is as far as biologically possible genetically their own. The surrogate consciously chose to bear a child for another couple with the understanding that she will not contest but will consent to their adoption of it.21 It noted that several concerns have been expressed about the efficacy of surrogate arrangements, including the following: (1) the child will not be protected; (2) the potential for exploitation of the surrogate mother; (3) the alleged denigration of human dignity by recognizing any agreement in which a .child is produced for money; (4) surrogacy is invalid because it is contrary to adoption statutes and other child benefit laws such as statutes establishing standards for termination of parental rights; (5) it will undermine traditional notions of family; and (6) surrogacy allows an elite economic group to use a poorer group of people to achieve their purposes.22 In rejecting these arguments, the court explained: (1) Whether or not the contract is complied with, the child will be protected. If there is compliance, the child will be adopted, with necessary court inquiry into its best interests. If there is non-compliance, the best interests are still litigated, with the child given its own guardian and 23 experts retained to aid the court in its determination. (2) Surrogate motherhood is not nearly as exploitative as private 21 Lg. at 68-69. Mr. Stern has no living relatives (many were killed in the Holocaust) and his wife was reluctant to become pregnant for fear that pregnancy and childbirth would aggravate a mild case of multiple sclerosis. 22 £1. at 69. 23 _1_d_. at 69-70. CRS-12 adoption, where a woman who is already pregnant may be forced to take action (such as giving up her child) she would rather avoid. In surrogacy, the a contract is made before pregnancy, when the desire and intention to have a family exist on the couple's part. The surrogate has an opportunity to consult, take advice and consider her act and is not forced into the relationship.24 (3) Money paid to the surrogate is not being paid for the surrender of a child; rather, the biological father pays the surrogate for her willingness top be impregnated and carry his child. This is not baby selling, in that the father cannot purchase what is already his.25 (4) Adoption laws and laws concerning the termination of parental rights were never intended to apply to surrogate parentage and should not be read to do so. The only concept of law that can presently attach to surrogacy arrangements are contract law principles and parens patriae concepts26 for the benefit of the child.27 (5) Surrogate motherhood cannot undermine traditional notions of the family, since the whole purpose of such an arrangement is to create a family, and it may be the only way to do so for childless couples who very much want one.28 (6) Judge Sorkow found this argument "insensitive and offensive to the 24 lg, at 70. 25 E. at 70-71. 26 Parens patriae is the power of the sovereign to watch over the interests of those who are incapable of protecting themselves. TE: at 2, citing Black's Law Dictionary (4th Ed., 1975). 28 £13 at 72. CRS-l3 intensive drive to procreate naturally and when that is impossible, to use what lawful means as possible to gain a child" -- a fundamental desire of all men and women regardless of economic status.29 One point which was stressed by Mrs. Whitehead was that she was not familiar (nor were any of the other parties) with a report filed by a counselor who met with her prior to her signing her first surrogate contract [with another couple in 1984; it did not result in her becoming pregnant] in which the counselor had said that she (Mrs. Whitehead) might have difficulty surrendering the child once it was born. However, substantial other evidence was produced that Mrs. Whitehead had thoroughly understood what she was doing; she had negotiated for some minor changes in the contract; and she stated in court that, up until the time of giving birth, she considered the child to be the Sterns and had planned to relinquish her to them.3O The court also held that $10,000 was not so low a fee as to be unconscionable,31 and that the Sterns did not commit fraud in their execution of the contract or, if they did, any possible fraud was immaterial.32 Finally, the contract was held not to be illusory, in that both parties had rights and obligations and rewards.33 29 1_d_. at 72-73. 30 £3. at 85-86. 31 13. at 73-79. 32 Mrs. Whitehead claimed that Mrs. Stern fraudulently misrepresented her infertility; that the Sterns should have disclosed her multiple sclerosis (if so, they might not have chosen to contract with the Sterns); and that knowledge of the report that Mrs. Whitehead might have difficulty giving up her child should be attributed to the Sterns because of their relationship with the agency. 33 Id. at 88-89. Mrs. Whitehead argued that Mr. Stern could reject the child if-it were not healthy; however, the court found that under the terms of the contract he had an obligation to support the child until majority regardless of whether it had physical or mental problems. CRS-14 As part of this reasoning, the court stated its disagreement with the Supreme Court of Kentucky's decision in Surrogate Parenting Associates v. Commonwealth ex rel. Armstrong, supra, which held that a surrogate mother in that state has 5 days after the birth of the child to rescind her consent to the contract. Rather, noting again that adoption statutes are not intended to cover surrogate motherhood, the Baby M court held that in New Jersey the mother may rescind her agreement only until the time of conception.34 In upholding the validity of the surrogacy contract, the court held that it is covered by the fundamental right to procreate, an aspect of the Ninth Amendment's right of privacy guarantee as applied to the states by the due process clause of the Fourteenth Amendment.35 The leading case in this regard is a 1965 decision, Griswold v. Connecticut,36 which struck down as violative of the right of marital privacy a Connecticut law prohibiting married couples from using contraceptives. Seven years later, in Eisenstadt v. fiaird, the Supreme Court expanded this decision, stating, "If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamental affecting a person as the decision whether to bear or beget a child."37 While none of 34 Lg, at 74-75. 35 The Ninth Amendment states, "The enumeration in the Constitution, of certain.rights, shall not be construed to deny or disparage others retained by the people." The right of personal privacy has been held to be among the "other rights" encompassed by this language. 35 381 u.s. 479 (1965). 37 405 U.S. 438, 453 (1972). Earlier, the Court held in Meyer v. Nebraska, 262 U.S. 390, 399 (1923) that each individual has the constitutional right "to marry, establish a home and bring up children;" and in Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), that the right to procreate was among the "basic civil rights of man." CRS—l5 these cases involved alternative reproductive methods, the Baby M court found this immaterial, ruling that if one has a right to procreate coitally, than one has the right to reproduce non-coitally--if it is the reproduction that is protected, then the means of reproduction are also to be protected.38 The court also held that if permitting a male to sell his sperm for procreation purposes (i.e., artificial insemination) is legally recognized in a state, it would violate equal protection of the laws to deny a woman the comparable right, i.e., the right to become a surrogate mother.39 However, consistent with the Supreme Court's decision in Roe v. Wade, after conception, the court held that only the surrogate mother has the right to decide whether to abort the fetus.4O Having found that the contract was valid, the court further found that Mrs. Whitehead had breached it in two ways: by failing to surrender to Mr. Stern the child born to her and Mr. Stern; and by failing to renounce her. parental rights to the child. It then had to determine what remedy should be applied, either monetary damages or specific enforcement of the terms of the contract. Finding that "monetary damages cannot possibly compensate plaintiff for the loss of his bargain because of defendant's breach,"41 the court ruled for specific performance, even though this is a discretionary remedy "which 38 Slip op. at 91. 39 £9. at 94. 40 410 U.S. 113 (1973). This decision held that, during the first trimester of pregnancy, the decision as to whether or not to abort is that for the woman alone, in consultation with her physician. During the second trimester, the state may impose only such regulations as are necessary to safeguard the woman's health. 41 Slip op. at 75-76. CRS-16 should only be exercised in accordance with principles of equity."42 However, as part of its ruling, the court felt compelled to determine whether specific performance would be in the child's best interest. ln reaching this decision, the court relied on nine criteria developed by Dr; Lee Salk to define the "best interests of a childz" (1) Was the child wanted and planned for? (2) What is the emotional stability of the people in the child's home environment? (3) What is the stability and peacefulness of the families? (4) What is the ability of the subject adults to recognize and respond to the child's physical and emotional needs? (5) What are the family attitudes towards education and their motivation to encourage curiosity and learning? (6) What is the ability of the adults to make rational judgments? (7) What is the capacity of the adults in the child's life to instill positive attitudes about matters concerning health? (8) What is the capacity of the adults in the baby's life to explain the circumstances of origin with least confusion and greatest emotional support? (9) Which adults would better help the child cope with her own life?43 In each instance, the court found the baby's best interests would be met by the Sterns. (Judge Sorkow used especially harsh language with regard to Mrs. Whitehead, characterizing her as "manipulative, impulsive, and exploitive;" "untruthful; too enmeshed with [Baby M] to separate her own needs from those of the child; not concerned with the consequences of her acts; and in various other uncomplimentary terms.44 Accordingly, the court ordered that Mrs. Whitehead's parental rights be 42 £9: at 95. 43 _19_. at 99-104. 44 E. at 105. CRS—17 terminated, and that the child be placed for permanent custody with the Sterns. Mrs. Whitehead was given the $10,000 she had contracted for, which had been held in an escrow account. Immediately following the ruling, Mrs. Stern was allowed to adopt the baby, severing Mrs. Whitehead's legal rights. However, Mrs. Whitehead has now been granted visitation once a week with the baby until such time as the New Jersey Supreme Court issues its ruling. The appeal is scheduled to be argued on August 14. Basis for Federal Action Under Art. I, § 8, of the Constitution, the so-called enumerated powers clause, Congress is not given general authority to legislate on family law matters such as adoption and surrogate motherhood. Thus, under that clause and the tenth amendment, primary authority in this area remains with the states. However, there are two possible approaches for Congress to consider should it find it desirable to legislate on this matter. Congress is authorized under Art. I, § 8, cl. 4 of the Constitution "to regulate commerce with foreign nations, and among the several states." This clause has been interpreted quite broadly and could seemingly serve as the basis for federal action since many surrogate parent contracts involve participants in more than one state. For example, in the Baby M case, both the Sterns and the Whiteheads live in New Jersey, but the Center which arranged the contract was headquartered in New York City. Also, the Supreme Court has held that the clause encompasses the authority to regulate intrastate activities if they have such a close and substantial relation to interstate commerce that their control is essential or CRS-18 appropriate to protect that commerce from burdens and obstructions.45 It is unlikely that courts would not accept congressional findings as to the interstate impact of surrogate motherhood activities. Alternatively, Congress could precondition the receipt by the states of "federal funding for various health and/or family programs on compliance with federal directives on surrogate motherhood. This approach does not violate the »Constitution as long as state participation is voluntary, since they have the option of declining the funding and hence those conditions found to be offensive.46 For example, Congress could provide that no medical facility g receiving federal funds could or could not perform certain procedures or become involved in specified activities, or that a state not receive specified health or social welfare funding unless it enacted specified provisions.47 Conclusion The Baby M case has focused national attention on the question of surrogate motherhood, and numerous state legislatures are reportedly considering legislation which would in some way regulate this activity. Since emotions run high on both sides of the question, it is likely that some states will enact prohibitions, while others may follow Judge Sorkow's reasoning and 45 National Labor Relations Board v. Jones and Laughlin Steel Corporation; 301 U.S. l, 17 (1936); Perez v. United States, 402 U.S. 146 (1971). 45 In some instances it can be argued that tying large amounts of federal funding to mandatory state actions should be considered impermissible federal legislation if states in fact have no alternative but to accept the funding and accompanying conditions (as is arguably true of Aid to Families with Dependent Children [AFDC] funding and other massive spending programs). See e.g., Brewster, "Does the Constitution Care about Coercive Federal Funding?" 34 Case W. Res. L. Rev. 1 (1983). However, to date this argument has not been raised in court.( 47 Congress can legislate directly with regard to federal institutions, such as military, veterans, and Indian hospitals. CRS-l9 permit such contracts subject only to minimal restrictions. Both before and after the enactment of these laws, it is likely that courts will be called upon to answer the many questions raised by this procedure. Again, the Baby M case has precedent only in New Jersey, although courts in other jurisdictions may well take note of Judge Sorkow's reasoning. However, it is by no means clear that all will adopt his views on the many issues involved. The following is a brief rundown of the major such issues. (1) Are surrogate mother contracts valid? While Judge Sorkow is an enthusiastic supporter of their use as what may be a childless couple's last recourse in their desire to have a child, others feel that they are immoral and should be declared void against public policy. (2) Does the right of procreative choice discussed in Griswold and comparable cases extend to non-coital reproduction? Again, the practice has both enthusiastic supporters and equally strong opponents, and no judicial precedents precisely on point. (3) Does permitting artificial insemination but not surrogate mother contracts violate the equal protection clause? Judge Sorkow found that it did, but others argue that the act of donating semen cannot and should not be equated with carrying and giving birth to a child. (4) Should the surrogate mother have some time period to reconsider her decision?, In Kentucky, she has until five days after the birth of the child; in New Jersey, if Judge Sorkow's ruling is upheld, only until she conceives. (5) If surrogate motherhood contracts are valid, what is the proper remedy for their breach? When, if at all, should specific performance be granted? What if the prospective adoptive parents (the Sterns in the Baby M case) are found to be unfit? (In Baby M, the specific performance remedy turned on the CRS—2O relative fitness of the parties to provide for the baby's best interests.) (6) If the father wants the mother to have an abortion, but she refuses, what is his responsibility towards the child? (7) If specific performance is not granted, or the mother is allowed to reconsider her decision to turn over the child, what are the respective rights and obligations of the parties? Is the f tier still required to contribute to the child's support? Can he sue for custody? If the surrogate mother is well off, can she be required to contribute to the father's support of the child in exchange for continued contact (visitation), if the father is awarded custody? (8) To what extent, if at all, do traditional adoption statutes apply to surrogate mother contracts? This is only a sampling of the questions which may arise in future cases, and it is unlikely that general rules, applicable to all cases, will be established soon either legislatively or by the courts. Because the interests involved are allegedly protected by the Constitution, the Supreme Court may in time choose to issue national guidelines in this area. (On the other hand, it may feel that this is an area best left to state discretion.) In the meantime, in the absence of any such precedents and (to date) of any pertinent state legislation, couples and courts involved in this activity will be forced to rely on legal principles which have been developed in related areas of the law. b )4!»/1 /i',;.'A:(C/-/L.(L..-1-___,_. Rita Ann Reimer Legislative Attorney American Law Division May 11, 1987 LIBRARY OF WASHINGTON UNIVERSITY 31'. LOUIS - MO.