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Surrogate Mother Contracts

April 19, 1987

Capron, in his insightful article on surrogate mother contracts, concludes that until medical science develops better means of overcoming infertility or until social attitudes change regarding adoption, abortion, and childlessness, there is no need for legislation making surrogate mother arrangements easier.

Capron uses the trial judge's reasoning in the "Baby M" case as a springboard into the issue. As he correctly states: "hard cases make bad law." I think Capron either ignores or minimizes the key issue regarding surrogate motherhood. Namely, it achieves a socially desirable objective: specifically, providing children for couples who cannot otherwise procreate by conventional means.

The "Baby M" case is merely another example of the law coming to terms with biotechnical future shock. This is not new. In recent years, we have had to grapple with ethics and technology in the areas of organ transplants, transplants from animals, abortion, test tube babies, defining death, forgoing life-sustaining treatment, etc.

Capron lists legally complex and emotionally anguishing problems in the area of surrogate contracts. They include practical concerns for a child's welfare, such as where the outcome is not a healthy child or where the child and/or its siblings have emotional problems caused by the surrogate arrangement.

All of these problems, and many more, exist with adoption, and indeed, even with children raised by their biological parents. We should not throw out the surrogate baby with the bathwater. Rather than discouraging or prohibiting surrogate contracts because of the possible horribles that could emerge, we must understand the problems and provide legislative guidelines to minimize them.

As with adoptions, we cannot escape the fact that surrogate motherhood has worked very well and should be encouraged. In the United States, there have been approximately 500 surrogate motherhood contracts, of which only three have gone to litigation. Thus, a judge has been called upon to resolve a dispute between a surrogate mother and the biological father in an insignificant number of times. Certainly an outstanding accomplishment in our litigious society!

Of course there will always be problems with surrogate contracts, as there are problems in so many of our personal relationships, particularly those affected by new technology. What has to be done is not no or less legislation, but rather devise statutory safeguards to minimize the likelihood of another "Baby M" case. This could include better preconception counseling, including the requirement that all parties be approved by a specialized agency, similar to what we do with adoption.

Let us not turn our backs upon the emotional realities burdening childless couples and the wonders of technology because of the unique problems that have sprung up in one lawsuit.


Van Nuys

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