The Silence Surrounding Surrogacy: a Call for Reform in Alabama
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5 MILLER 1375-1391 (DO NOT DELETE) 7/23/2014 10:31 AM THE SILENCE SURROUNDING SURROGACY: A CALL FOR REFORM IN ALABAMA I. METHODS OF SURROGACY AND ITS PLACE IN THE UNITED STATES AND ALABAMA ............................................................................. 1376 II. LEGAL TREATMENT OF SURROGACY AGREEMENTS IN THE UNITED STATES .......................................................................................... 1379 A. The First Landmark Case: In re Baby M .............................. 1379 B. California’s Response: Johnson v. Calvert ........................... 1382 III. REGULATION OF SURROGACY ............................................................ 1383 A. Federal Legislation ............................................................... 1383 B. The Model Acts ...................................................................... 1385 1. Uniform Parentage Act .................................................... 1385 2. ABA Model Act Governing Assisted Reproductive Technologies .................................................................... 1386 C. State Legislation .................................................................... 1386 IV. LEGAL TREATMENT OF SURROGACY AGREEMENTS IN ALABAMA ... 1388 A. Call for Legislative Action ..................................................... 1388 B. Legislative Recommendation for Alabama ............................ 1389 CONCLUSION ............................................................................................ 1391 Surrogacy is the “use of [a] woman’s gestational capability to assist in the development of a child” that another person or couple intends to parent.1 Once considered merely science fiction, surrogate motherhood is now commonplace in sitcoms,2 magazines,3 and movies.4 While the use of assisted reproductive technology (ART) has increased significantly since the birth of the first “test-tube” baby in 1978,5 the number of children born through surrogate arrangements has also risen dramatically. From 2004 to 1. Paul G. Arshagouni, Be Fruitful and Multiply, by Other Means, if Necessary: The Time Has Come to Recognize and Enforce Gestational Surrogacy Agreements, 61 DEPAUL L. REV. 799, 800 (2012). 2. Friends: The One with Phoebe’s Uterus (NBC television broadcast Jan. 8, 1998). 3. Chantal Waldholz, Bill & Giuliana Rancic: Meet Our Son, Edward Duke, LIFE & STYLE, Sept. 11, 2012, available at http://www.lifeandstylemag.com/entertainment/news/bill-giuliana-rancic-meet- our-son-edward-duke#.UOiSaInjlgM. 4. BABY MAMA (Universal Pictures 2008). 5. Louise Brown, the first child born through in vitro fertilization, was born in 1978. See MAGDALINA GUGUCHEVA, COUNCIL FOR RESPONSIBLE GENETICS, SURROGACY IN AMERICA 3 (2010), http://www.councilforresponsiblegenetics.org/pagedocuments/kaevej0a1m.pdf (last visited May 13, 2014). At this time, there are no statistics available on the prevalence of traditional surrogacy. 5 MILLER 1375-1391 (DO NOT DELETE) 7/23/2014 10:31 AM 1376 Alabama Law Review [Vol. 65:5:1375 2008, the number of babies born to gestational surrogates increased by 89%, reaching almost 1,000 births annually and far exceeding the growth in the number of babies born through in vitro fertilization (IVF).6 With this marked increase in the use of surrogate mothers, the general public’s knowledge of surrogacy’s existence, acceptance of the practice, and awareness of surrogacy’s accompanying issues have also increased significantly. As with many cultural changes and technological advancements, the increased use of surrogacy has sparked moral and ethical controversy. Courts across the country have found themselves confused by the lack of legislation addressing the practice and the unknown long-term consequences of surrogacy. While uncertainty may have been understandable and expected in the 1980s and 1990s, this article calls for guidance in the form of uniform federal legislation, and if not that, then the rapid enactment of state statutes.7 It has been thirty-one years since the first surrogate birth in Alabama.8 With the rapid advent of new reproductive technologies, the law governing these advances has failed to keep pace. Alabama citizens interested in using surrogacy are still without guarantee that their intended, planned-for, and cherished child will end up in their arms. In Part I, this Note will provide a general overview of the basic definitions and methods of surrogacy, as well as the history and current state of the practice of surrogacy in the United States and Alabama. Part II will focus on the two major cases in United States surrogacy law. Part III will describe the regulation of surrogacy on both the federal and state level. Part IV will consider the legal treatment of surrogacy in Alabama and exhort Alabama legislators to expediently enact laws to govern surrogacy. I. METHODS OF SURROGACY AND ITS PLACE IN THE UNITED STATES AND ALABAMA Surrogate motherhood is not a new concept to humanity, as evidence of its use can be seen in the Christian Bible.9 The book of Genesis, found within the Old Testament, tells the story of Abraham and his wife Sarah, 6. Id. 7. See generally Austin Caster, Note, Don’t Split the Baby: How the U.S. Could Avoid Uncertainty and Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law Regime, 10 CONN. PUB. INT. L.J. 477 (2011); see also Christine L. Kerian, Surrogacy: A Last Resort Alternative for Infertile Women or a Commodification of Women’s Bodies and Children?, 12 WIS. WOMEN’S L.J. 113 (1997). 8. In-Law Convinced Man to Approve Surrogate Birth, THE GADSDEN TIMES, Aug. 19, 1983, at A1. 9. See Kerian, supra note 7, at 116–17. 5 MILLER 1375-1391 (DO NOT DELETE) 7/23/2014 10:31 AM 2014] The Silence Surrounding Surrogacy 1377 who was considered barren.10 With the couple seeking a child, Sarah offered her handmaiden, Hagar, to her husband.11 Abraham slept with Hagar, producing a son for Sarah named Ishmael, whom she raised as her own.12 No surrogacy contracts were needed, as there was no concern that the surrogate mother would refuse to “relinquish her parental rights upon the birth of the child.”13 Today, surrogacy arrangements are not as simple, creating the need for laws which govern “arrangements where a woman contracts to become pregnant by means of assisted reproduction with or without the use of an egg from her own body.”14 The primary purpose of the contract is that the gestational carrier agrees to relinquish her parental rights upon the child’s birth.15 Surrogacy is divided into two categories: traditional and gestational. In a traditional surrogacy, the surrogate carrier bears a child “formed from her own egg.”16 The sperm used is usually from the intended father, but it can also be from a donor.17 In a gestational surrogacy, “a non-childbearing female supplies the ova,” and the intended father or a donor supplies the sperm cells.18 As a result, in a traditional surrogacy the surrogate is genetically related to the resulting child; in contrast, the surrogate in a gestational surrogacy is not genetically related to the resulting child.19 Due to the large number of women suffering from infertility in the United States,20 many American women turn to infertility services to help 10. See Genesis 16. 11. Id. 12. Id. 13. Lisa L. Behm, Legal, Moral & International Perspectives on Surrogate Motherhood: The Call for a Uniform Regulatory Scheme in the United States, 2 DEPAUL J. HEALTH CARE L. 557, 560 (1999) (also recounting the biblical story of Sarah and Abraham). 14. Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage, 53 HASTINGS L.J. 597, 603 (2002). 15. See id. at 607. 16. Todd M. Krim, Beyond Baby M: International Perspectives on Gestational Surrogacy and the Demise of the Unitary Biological Mother, 5 ANNALS HEALTH L. 193, 194 (1996). 17. Anne R. Dana, Note, The State of Surrogacy Laws: Determining Legal Parentage for Gay Fathers, 18 DUKE J. GENDER L. & POL’Y 353, 360–61 (2011). 18. Adam P. Plant, Note, With a Little Help from My Friends: The Intersection of the Gestational Carrier Surrogacy Agreement, Legislative Inaction, and Medical Advancement, 54 ALA. L. REV. 639, 643 (2003). 19. Arshagouni, supra note 1, at 801. 20.Infertility is defined as “a disease of the reproductive system that impairs the body’s ability to perform the basic function of reproduction.” Am. Soc’y for Reprod. Med., Quick Facts About Infertility, REPRODUCTIVEFACTS.ORG, http://www.reproductivefacts.org/detail.aspx?id=2322 (last visited May 13, 2014). Infertility in the United States is becoming a topic increasingly at the forefront of conversation as approximately 6.7 million women in the United States have an impaired ability to have children and 1.5 million married women ages 15–44 are considered infertile. Ctrs. for Disease Control and Prevention, FastStats—Infertility, CDC.GOV, http://www.cdc.gov/nchs/fastats/fertile.htm (last visited May 13, 2014). 5 MILLER 1375-1391 (DO NOT DELETE) 7/23/2014 10:31 AM 1378 Alabama Law Review [Vol. 65:5:1375 them produce a child.21 Couples are increasingly turning to surrogacy as an alternative method of bearing a child genetically related to them.22 If a couple is unable to carry a child to term, the use of a surrogate is the only available option to have a child genetically related to one or both parents.23 Often, surrogates offer their gestational services altruistically, finding joy in being able to provide a couple with the child they desperately want.24 The motivating factors vary: some surrogates