Commercial Surrogacy II: An Overview of Laws in the US and France

Mr. Venkatesan put forth several interesting questions in response to a previous post on commercial surrogacy (see comment). There is a vast body of literature on surrogacy with a variety of views and concerns in play. This post is therefore not intended to be comprehensive and only attempts to address briefly the issues he raised.

French Court Decisions:

It was mentioned in the NYT blog that the practice has been outlawed in France owing to a decision by a French court. There are actually two pertinent decisions of France’s highest court, the Cour de Cassation, and were based on two grounds: (1) it involves the sale of items that cannot be transacted commercially and therefore violates the doctrine of ordre public (which is somewhat similar to the English doctrine of public policy) (2) the purpose of the law of adoption is to provide a home for homeless children; a surrogacy arrangement which adopted a similar procedure amounted to an abuse of the law as it was a contractual arrangement to create a homeless child to take advantage of the provisions intended for genuinely homeless babies. The doctrine of fraude à la loi (which arises when a person, without openly violating the law, makes specific arrangements in order to evade it) therefore applies rendering the agreement null and void in French law. I quote this from a freely available article by Christopher Forsyth which provides a detailed account of these cases.

Laws on Commercial Surrogacy in the United States:

The blog report mentioned that there is no uniformity of laws in the US and there is a great deal of variation among states. As for the current state of laws, I quote from a review published last summer:

“Arkansas and Texas have drafted legislation to clarify the parental rights of the parents and to negate parental rights of the surrogate in order to minimize possible conflicts over determination of parentage or transference of parental rights. Arkansas defines legal parentage based on each party’s intent at the time of the gestational contract. Absent evidence to show the contract is voidable, the law assumes each party intended the outcome of the contract: payment for gestation in exchange for parental rights following the birth. Texas focuses on transference of parental rights following birth rather than an assumption based on intent and outlines the process for voluntary relinquishment of parental rights. The statute specifies each detail of the process, from the time period when parental rights must be transferred, to witnesses, and verification, which binds both the surrogate and parents. The presence of effective parentage declarations combined with the absence of statues that limit the contractual validity has created an attractive jurisdiction for commercial gestational surrogacy contracts.

Both Kentucky and Indiana declare commercial surrogacy contracts void. In these states, commercial surrogacy contracts are defined as null, without legal significance. Indiana explicitly outlines the definition of a surrogacy agreement as one which induces the surrogate “to relinquish care, custody and control over the child.” Indiana further outlines that enforcing the terms of the surrogacy contract is against public policy, alluding to societal undesirability of enforcing processes that fulfill the surrogacy contract through any means, such as pre-birth payment for relinquishment. Defining the parties involved in surrogacy, Kentucky declares that no “person, agency, institution, or intermediary shall be party to a [commercial surrogacy] contract or agreement,” indicating a legislative desire to prevent professional facilitation of such agreements as a business enterprise.

Nebraska law declares commercial surrogacy contracts void and creates a further distinction by declaring them also unenforceable. Besides the legal nullity of the contract, this addition indicates the unwillingness on the part of the legislature to force the courts to adjudicate or even recognize the parties’ intentions. Yet the statute does not provide further detailed legislative history or reasoning to address the practical application of the statute specifically for the state of Nebraska.

Louisiana, Michigan, New York, and Washington have deemed commercial surrogacy contracts void, unenforceable, and against public policy, specifically providing a rationale for rejecting the legal validity or enforcement of such contracts. Despite these additional distinctions, neither Louisiana nor Nebraska complements these declarations with any penalty, which perhaps detracts from their potential potency. While the legislatures may have intended the legal nullity and unenforceability as a self-regulating measure against contract execution, the self-proclaimed success of agencies in these jurisdictions suggests otherwise.

Several states attempt to prohibit commercial surrogacy arrangements and outline penalties aimed at dissuading involved parties. Perhaps the most extreme example of a state’s desire to regulate and prohibit commercial surrogacy is Michigan. The latter provides separate penalties for participating parties of the contract, classifying such action as a misdemeanor, punishable by a fine of not more than $10,000, not more than one year in prison, or both. Addressing the party who “induces, arranges, procures, or otherwise assists” the parties into the surrogacy contract, Michigan classifies these actions as a felony punishable by a fine of not more than $50,000, imprisonment for not more than five years, or both. New York imposes a civil penalty for the parties to the contract, outlining a fine of $500 or less. The state also imposes civil consequence for the party who “induces, arranges or assists,” outlining a fine of $ 10,000 or less, forfeiture of the compensation and, if a repeat offender, guilty of a felony. Washington similarly provides a punishment for the “person, organization or agency” party to the contract or its formation with penalty of a gross misdemeanor.

Clearly, classification of participation in commercial surrogacy contracts as criminal conduct, as with Michigan, suggests that legislators in some states have felt morally responsible for preventing the creation or execution of these transactions. The disparity between categorizing commercial surrogacy as criminal in one state to adamant legal enforcement in others allows the agencies operating across state lines to utilize the law of the most supportive jurisdictions, and in this way circumvent the federal government’s regulation of interstate commerce.”

Important Court Decisions on Commercial Surrogacy in the United States:

The New Jersey Supreme Court issued a seminal decision regarding surrogacy contracts (In re Baby, 537 A 2d., 1227, N.J., 1988) where it found the payment of money to a surrogate mother ‘illegal, perhaps criminal, and potentially degrading to women’ (click here for a detailed excerpt from the opinion). The Court noted inter alia that surrogacy is really a ‘private placement adoption for money’ and surrogacy contracts involving money violated laws prohibiting the use of money in connection with adoptions. It also suggested that the surrogate mother is being exploited because she ‘never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby’s birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary. Her interests are of little concern to those who controlled this transaction… it is clear to us that it is unlikely that surrogate mothers will be as proportionately numerous among those women in the top 20 percent income bracket as among those in the bottom 20 percent.’

In Johnson v. Calvert , the California Supreme Court took the opposite view holding that surrogacy differed in crucial ways from adoption which therefore did not apply; it also rejected the argument about exploitation of poor women saying, ”Although common sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment.”

Interests of the Child:

Mr. Venkatesan asks what would happen, in the case of surrogacy, to the child’s interest to remain with his/her biological mother. I would not use the word ‘biological’ because its connotation is unclear – often the egg is donated by one woman (the ‘genetic’ mother) and the pregnancy carried through by another (the ‘gestational’ mother/surrogate). Some jurisdictions (Virginia for example) recognize the gestational mother as having parental rights whereas others (California, ICMR guidelines in India for example) confer this right to the genetic mother. It is certainly possible to argue this ethical question both ways. Other concerns regarding the impact of surrogacy on children as and when they grow up have also been voiced (the legal argument is therefore about not this particular right but the ‘best interests of the child’). The only answer I can provide is that studies till date have not shown any evidence of adverse psychological impact of surrogacy on children up to adolescence (longer term studies have not been conducted). No adverse effect has been noted on gestational surrogates either. On the contrary, there is some reason to believe that those who obtained their children through surrogacy are more doting and make better parents (click here for a BBC news report reporting the findings of one such study).

The other question is whether the gestational surrogate can give up the child voluntarily following delivery. That is part of the deal; indeed, a significant fraction of litigation in the US can be traced to the lack of legislative guidance on this point. Studies indicate that in general, such surrogate mothers are only rarely troubled by the prospect of giving up the child. In India, the ICMR guidelines seek to avoid this problem by declaring that gestational surrogates ‘must relinquish in writing all parental rights concerning the offspring’ (3.5.5).

The ABC news item mentioned in the previous post stated that ‘commercial surrogacy has been legal in India since 2002’ though no new law has been enacted pertaining specifically to this topic. I think the reference was to the ICMR guidelines which were put up for public debate at that time.

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