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Surrogate Mother Contracts

April 19, 1987

Although Alexander Morgan Capron makes some sound observations in his article (Editorial Pages, April 7) about public policy regarding surrogate mother contracts, his attack on New Jersey Judge Harvey Sorkow's arguments in the "Baby M" case are less than persuasive.

First, he tries to cast doubt on Judge Sorkow's claim to be protecting a woman's freedom to do with her uterus at least as much as a man is now free to do with his sperm (sell or donate it for purposes of artificial insemination). Capron counters with the point that a woman who signs a surrogate mother contract "is deprived of the right that is usually given to parents who change their minds within a certain period after giving up a baby for adoption."

But this is to misunderstand Sorkow's point that a surrogate mother contract involves payment for services, not payment for a baby. A woman who contracts with others for the rental of her womb for nine months conceives of herself as providing a service. As such, her freedom is no more restricted by the surrogate (service) contract than (e.g.) her freedom is restricted when she rents her garage and tools to someone who wants to build a boat therein with the understanding that he (not she) gets to keep the boat when the job is complete.

Of course, Capron protests Sorkow's contention that a surrogate contract does not represent payment for a baby. Capron's proof is that surrogate contracts "provide that payment will not be made if the woman miscarries." This is true, but it is surely not a necessary feature of surrogate contracts. Such contracts could allow for partial payment (for services) in the event of miscarriages. And even if they don't allow for payment, it doesn't follow that the contract must be conceived as a contract for a baby rather than a contract for services.

If a woman enters into a contract with another for the use of her garage and tools on the condition that she will be paid only if he succeeds in building a boat therein, the contract may be foolish, but it is still a contract for the use of the garage, not a contract for a boat.

We should applaud Capron's recommendation that the real parties in interest, "the ones in greatest need of society's protection," are not the contending adults, but the child. Unfortunately, he draws from this the conclusion that "there is no need for state legislatures to rush to the adopt measures to make this practice (surrogate mother contracts) any easier."

In light of Sorkow's decision in "Baby M" and opposing decisions by judges in other state jurisdictions, I fail to see why he thinks that children will benefit from the uncertainty bred by judge-made law in this area. One of the advantages of state regulation is to alleviate uncertainty and in the area of the emerging birth technologies; this could only benefit children, not hurt them.


San Luis Obispo

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