Although the first recognized surrogate mother arrangement took place in 1976, the surrogacy issue brought national attention in 1984 through the Baby M case. In this particular case a New Jersey couple, William and Elizabeth Stern, contracted with Mary Beth Whitehead to pay $10,000 for her to be artificially inseminated with Mr. Stern's sperm and carry the child to term. Once the child was born, Ms. Whitehead changed her mind and decided to keep the baby. She refused the $10,000 payment and fled to Florida.
In July of 1985, the police arrested Mary Beth Whitehead, and returned the baby to the Sterns. A year later, however, the NJ Supreme Court declared the contract unenforceable and although they allowed the Stern's to maintain physical custody of the baby, Mary Beth had some of her parental rights restored and was allowed visitation.
What is Surrogacy?
In surrogate motherhood, one woman acts as a surrogate, or replacement mother for another woman. This can happen because the intended mother cannot produce fertile eggs, or cannot carry a pregnancy to term. Surrogacy can be classified as either commercial or altruistic. In commercial surrogacy the surrogate is paid an agreed-upon fee plus expenses incurred during the pregnancy and delivery. An altruistic surrogacy pays the surrogate only for her expenses; the assumption being that she is carrying a child for another woman for altruistic reasons.
Methods of Surrogacy
The most common method of surrogacy occurs when the husband's sperm is implanted in the surrogate through artificial insemination. In this case the surrogate is both the gestational mother and the genetic mother of the baby. When the intended mother can produce fertile eggs but cannot carry a child to term, her eggs are removed, combined with her husband's via in vitro fertilization and implanted in the surrogate mother, making the surrogate the gestational mother but not the genetic mother.
What if I Change My Mind?
In 1989 the American Bar Association drafted two alternative model laws involving surrogate motherhood which were intended to guide states as they formulated their own specific laws. Under either of these models the following applies:
- States legalizing surrogate contracts limit them to agreements between surrogate mother and a married couple.
- A genetic link must be established between the couple and the child via the husband's sperm, the wife's egg, or both.
- The contract must be approved by a judge before conception occurs and must be accompanied by proof the wife cannot bear a child.
- The surrogate mother has the right to rescind the contract up to 180 days after the conception, in which case she may keep the child.
Keep in mind that surrogacy laws vary widely from state to state, and your attorney is the most experienced and up-to-date guide for your surrogacy questions.
