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Surrogacy V. the Thirteenth Amendment Cyril C Masthead Logo NYLS Journal of Human Rights Volume 4 Issue 2 Volume IV, Part Two, Spring 1987 Article 4 (Symposium: Surrogate Motherhood) 1987 Surrogacy v. the Thirteenth Amendment Cyril C. Means Jr. New York Law School Follow this and additional works at: https://digitalcommons.nyls.edu/journal_of_human_rights Part of the Contracts Commons, Family Law Commons, and the Fourteenth Amendment Commons Recommended Citation Means, Cyril C. Jr. (1987) "Surrogacy v. the Thirteenth Amendment," NYLS Journal of Human Rights: Vol. 4 : Iss. 2 , Article 4. Available at: https://digitalcommons.nyls.edu/journal_of_human_rights/vol4/iss2/4 This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of Human Rights by an authorized editor of DigitalCommons@NYLS. SURROGACY v. THE THIRTEENTH AMENDMENT CYRIL C. MEANS, JR.* INTRODUCTION The child, and the adolescent and adult that the child will become, is the paramount party in interest in any case determin- ing the legal parents of a child borne by a surrogate.1 This arti- cle presents arguments on behalf of the child and adolescent- adult-to-be that the surrogacy contract' is invalid under the * Professor of Law, New York Law School. A.B. Harvard University 1938; J.D. Wayne State University 1941; LL.M. Harvard University 1948. 1. In this article, the misleading expressions "surrogate parent" and "surrogate mother" will not be used. The word "surrogate" means substitute. The natural mother is not the "surrogate mother," but the actual mother of the child; the child's surrogate mother is the adopter, the natural father's wife. The natural mother is actually a surro- gate wife who substitutes for the natural father's wife in conceiving, gestating and bear- ing his child. The expression "surrogate mother" was coined by Noel P. Keane and other advo- cates of commercialized surrogacy in an effort to steal a march on the debate by pre- empting its vocabulary. Such an expression implies that the adopter is the real mother of the surrogacy-produced child. In this article, therefore, the natural mother will be re- ferred to either as surrogate or as mother. In England, which has had nine years of judicial and legislative experience in dealing with surrogacy-a longer period than in any other common law country or state in the world-this semantic solecism has often been commented upon. A particularly lucid ex- position was given by the Earl of Cork and Orrery in a House of Lords debate on a bill to amend the Surrogacy Arrangements Act 1985: So the woman who has the baby is the surrogate mother. She is the substi- tute. But for what? For the real mother? No, she is the real mother. So, for what is she a surrogate? She is the surrogate, according to the logic (if that is not too strong a word to use in relation to what lies behind this Bill or Act) for some- body who cannot have a baby. But that does not make her a surrogate mother, it makes her a mother. The woman who gets the baby is the substitute for that original mother who hands the baby over by a process of adoption. This is the perfectly ordinary, simple, straightforward situation that actu- ally occurs. .put. .into ordinary common English. 173 PARL. DEB., H.L. (5th ser.) 174 (1986). 2. The draftsmen of the Surrogacy Arrangements Act 1985 used the word "arrange- ments" rather than "contracts." The term "contract" properly designates only an agree- ment that courts will enforce. Since 1978 English courts have held a surrogacy agreement "as being against public policy" so that no party "can rely upon it in any way or enforce the agreement in any way," holding that "this was a purported contract for the sale and purchase of a child." A. v. C., [1985] F.L.R. 445, 449 (Fain. & C.A. 1978). 446 HUMAN RIGHTS ANNUAL [Vol. IV thirteenth amendment 3 and the federal Anti-Peonage Act," and that fourteenth amendment 5 substantive due process does not preserve the contract. The only existing population group analo- gous to the current cohort of surrogacy-produced children is that of full blood-stranger adoptees; a proper comparison between these two groups is presented to define the differences between these child-acquisition procedures and their impact on society. The highly publicized Baby "M"6 case illustrates the nature of the contractual relationships in a surrogacy arrangement and is referred to extensively throughout this article. After reviewing American legal precedent, this article turns to English law which began addressing these issues almost a decade ago. Thus we may learn from the English experience. This article urges serious consideration of the English solutions to this problem. A surrogacy contract has an inherently dual nature: from impregnation through birth, it is a contract for personal services; after birth, if the child is born alive, it is a contract of sale. The typical surrogacy contract provides that upon surrender of the born child to the natural father, a certain sum will be paid to the natural mother. If the child should die, a much smaller sum will be due to the natural mother. These provisions reveal the nature of the agreement: a sale of services through birth; Under our American Federal system, the situation is more complicated: the Thir- teenth Amendment and the Anti-Peonage Act make impossible specific performance of surrogacy agreements throughout the Union as a matter of federal law. The Congress that enacted the Anti-Peonage Act excised from the bill a section that would have totally invalidated agreements coming within its scope and would have made them unenforce- able even by actions for damages. Such contracts therefore continue to be governed by state law in regard to remedies other than decrees of affirmative specific performance. Because of this Federalism-caused complexity, this article will use the expression "surro- gacy contracts" while advocating adoption of English precedent to declare their total invalidity under both federal and state law. 3. U.S. CONST. amend. XIII. 4. Anti-Peonage Act, March 2, 1867, ch. 187, 14 Stat. 546, [now 42 U.S.C. § 1994 (1982) and 18 U.S.C. § 1581 (1982)1. 5. U.S. CONST amend. XIV. 6. In re Baby M, 217 N.J.Super. 313, 525 A.2d 1128 (Ch. Div. 1987), cert. granted, 107 N.J.140, 526 A.2d 203 (Apr. 7, 1987). 7. For example in the Baby "M" case, paragraph 4(A) of the Surrogate Parenting Agreement (P-4) provided that "$10,000.00 shall be paid to Mary Beth Whitehead, Sur- rogate, upon surrender of custody to William Stern," but paragraph 10 provided that in "the event the child is miscarried, dies or is stillborn subsequent to the fourth (4th) month of pregnancy and said child does not survive, the Surrogate shall receive $1,000.00 in lieu of the compensation enumerated in paragraph 4(A)." 1987] THIRTEENTH AMENDMENT and, after birth, a sale of a living child. It is this ambiguous nature of the contract that makes anal- ysis of the conflict so complex. Those who favor validating surro- gacy contracts argue that they are service agreements only. This article posits that whether the agreement is one for services only, or one for services plus the sale of a child, federal law pro- hibits the bondage it would impose on both the mother and the child. CONTRACT FOR THE SALE AND PURCHASE OF A CHILD Before 1865 and the passage of the thirteenth amendment,8 human beings held in slavery were always transferable, whether by sale, gift inter vivos, or bequest in a will in the same manner as chattels. Could a father then purchase his own child? A common case was that of a free father siring a child by a slave mother whom he owned. The free father already owned his child because of his ownership of the mother; under the rule partus sequitur ventrem the slave or free status of the offspring was determined by that of the mother. Another less frequent situation was where a free father sired a child by a slave woman whom he did not own but whom he had rented from her owner. Less affluent husbands often did not have enough money to buy their wives a maid, but did have enough to rent one. Where the husband impregnated a rented slave, and she bore him a child, the offspring would belong to the mother's owner. If the father wanted his child, he would have to buy the child from the mother's owner. In Moss v. Sandefur,9 a father tried to purchase and manumit10 his daugh- ter from the owner of a rented slave. Unfortunately, he died before completing the transaction and his child remained a slave. These antebellum cases where the free father was white were not surrogacy cases. The free father's wife was also white 8. "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. CONST. amend. XIII § 1. 9. 14 Ark. 381 (1854). 10. Manumission is the act of liberating a slave from bondage and giving him his freedom. BLACK'S LAW DICTIONARY 870 (5th ed. 1979). For an illustration of manumis- sion, see infra note 14. HUMAN RIGHTS ANNUAL [Vol. IV and, even if infertile, would not have welcomed into her nuclear family a child sired by her husband in a slave surrogate. In the case of nonwhite free fathers," the institution of slavery easily lent itself to a surrogacy scenario.
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