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Surrogate Motherhood Page ii MEDICAL ETHICS SERIES David H. Smith and Robert M. Veatch, Editors Page iii Surrogate Motherhood Politics and Privacy Edited by Larry Gostin Indiana University Press Bloomington and Indianapolis Page iv This book is based on a special issue of Law, Medicine & Health Care (16:1–2, spring/summer, 1988), a journal of the American Society of Law & Medicine. Many of the essays have been revised, updated, or corrected, and five appendices have been added. ASLM coordinator of book production was Merrill Kaitz. © 1988, 1990 American Society of Law & Medicine All rights reserved No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage and retrieval system, without permission in writing from the publisher. The Association of American University Presses' Resolution on Permission constitutes the only exception to this prohibition. Manufactured in the United States of America ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences— Permanence of Paper for Printed Library Materials, ANSI Z39.48–1984. Library of Congress Cataloging­in­Publication Data Surrogate motherhood : politics and privacy / edited by Larry Gostin. p. cm. — (Medical ethics series) Includes bibliographical references. ISBN 0­253­32604­4 (alk. paper) 1. Surrogate mothers—Legal status, laws, etc.—United States. 2. Surrogate mothers—Civil rights—United States. 3. Surrogate mothers—United States. I. Gostin, Larry O. (Larry Ogalthorpe) II. Series. KF540.A75S87 1990 346.7301'7—dc20 [347.30617] 89­45474 CIP 1 2 3 4 5 94 93 92 91 90 Page v Contents Introduction ix Larry Gostin CIVIL LIBERTIES A Civil Liberties Analysis of Surrogacy Arrangements 3 Larry Gostin Procreative Liberty and the State's Burden of Proof in Regulating Noncoital 24 Reproduction John A. Robertson Fairy Tales Surrogate Mothers Tell 43 George J. Annas LEGAL STATUS Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood 59 Alexander M. Capron and Margaret J. Radin Surrogate Motherhood and the Best Interests of Children 77 Angela R. Holder Legislative Approaches to Surrogate Motherhood 88 R. Alta Charo Page vi ETHICS Surrogate Motherhood as Prenatal Adoption 123 Bonnie Steinbock Is There Anything Wrong with Surrogate Motherhood? An Ethical Analysis 136 Ruth Macklin The Ethics of Surrogate Motherhood: Biology, Freedom, and Moral Obligation 151 Lisa Sowle Cahill WOMEN'S AUTONOMY Surrogate Motherhood: The Challenge for Feminists 167 Lori B. Andrews An Essay on Surrogacy and Feminist Thought 183 Joan Mahoney PUBLIC HEALTH Surrogacy and the Health Care Professional: Baby M and Beyond 201 Karen H. Rothernberg Surrogacy: A Preferred Treatment for Infertility? 221 Nadine Taub CASE REVIEW ESSAYS The New Jersey Supreme Court Baby M Decision The Case of Baby M: Love's Labor Lost 233 George P. Smith, II Page vii Solomon Would Weep: A Comment on In the Matter of Baby M and the Limits of Judicial 243 Authority Randall P. Bezanson APPENDIXES Appendix I 253 Excerpts from the Decision of the New Jersey Supreme Court, In the Case of Baby M Appendix II 261 Status of State Legislation Proposed or Enacted through October 5, 1988 Appendix III Model Surrogacy Acts A. Section of Family Law of the American Bar Association 270 B. National Conference of Commissioners on Uniform State Laws 280 Appendix IV Statements of Policy on Surrogacy A. The American Civil Liberties Union 293 B. The American College of Obstetricians and Gynecologists 300 C. The American Medical Association 304 D. The American Fertility Society 307 E. The New York State Task Force on Life and the Law 315 F. Institute on Women and Technology 322 G. Testimony of Gena Corea 325 Appendix V Bibliography 338 Contributors 356 Index 358 Page ix Introduction Larry Gostin When the American Civil Liberties Union appointed me as chair of the ACLU Special Committee on Surrogate Parenting, the task seemed relatively straightforward. It quickly became apparent that each side in the surrogacy debate claimed that civil liberties principles supported its own preconceived view. Proponents of surrogacy argued that the right to reproductive freedom required the judicial enforcement of contracts. Opponents of surrogacy countered that the same civil liberty (this time focused exclusively on women's autonomy) militated against surrogacy agreements. The ACLU Committee had the task of unraveling the competing claims and of proposing a policy­neutral civil liberties framework for surrogacy. My chapter is built upon the ACLU's deliberations and conclusions on surrogacy. The validity of these opposing arguments depends upon whether there is a constitutional right to privacy in making a surrogacy agreement. John Robertson argues forcefully that there is a right to contract with consenting collaborators for the purposes of reproduction. He sees this right as virtually equivalent to the constitutional protection afforded to coital reproduction. If there is a constitutionally protected privacy interest in surrogacy, then the state must show a compelling interest in order to ban or regulate it. Robertson's argument is that the state could never show a compelling interest in banning surrogacy (a conclusion shared by the ACLU), but that it might have a compelling interest in regulating surrogacy, primarily to protect the interests of the child. There is little doubt that Robertson's argument would prevail if non­coital reproduction received the same level of constitutional protection as traditional reproduction. The Supreme Court has enunciated a fundamental right "whether to bear or beget a child." But Supreme Court reproduction cases have been concerned with sterilization, contraception, and abortion. These cases involved questions of sexual intimacy, personal and family relationships, and deep expectations of privacy. The Court has never decided a case involving non­coital reproduction. One could argue that the right to form a contract with a stranger for sterile artificial insemination has little to do with the loving and private relationships the Supreme Court has protected. In effect, the Robertson argument uses the name "reproduction" to assert a constitutional right to privacy. But reliance upon the words used in Supreme Court precedent is not the same as an argument about why surrogacy is a truly intimate relationship deserving protection under the privacy doc­ Page x trine. One reason given is that the private character of reproduction is not the loving relationship between two people, but the mere fact of reproducing an offspring that is biologically related to the couple. To feminists, it is anathema to suggest that a male's right to reproduce from his own gene line is the core value in the ethos of privacy. In the view of George Annas, the "core reality of surrogate motherhood is that it is both classist and sexist: a method to obtain children genetically related to white males by exploiting poor women." Annas uses symbols entirely different from those of Robertson, so their arguments seldom meet. To Annas, the question is not whether there is a constitutional right to privacy. His argument is that the reasons advanced for surrogate reproduction are abhorrent to commonly accepted social values. The implications are that a man has no "right" to a biologically related child; that women are exploited by fulfilling the man's desire for such a child; and that babies are treated as consumer products, which is immoral. This is a highly judgmental perspective on the free decisions of genetic fathers and gestational mothers, even though the judgments are powerfully stated and "ring true." But judgmental they are, for they say to men and women that they cannot do what they believe would make them happy, because others with a "finer" ethical sense should decide the "right way'' to reproduce. The "commodification" argument is extended and strengthened by Alex Capron and Margaret Radin. They meet Robertson's constitutional argument merely by asserting that there is no "absolute right to paid surrogacy." What is needed to sustain their argument is a careful analysis of why the considerable Supreme Court precedent cannot be applied to surrogacy arrangements. The chapter leaves several questions unanswered: How is surrogacy different from coital reproduction and the right to privacy? If there is no absolute right to paid surrogacy, is there a presumptive right? Were the state to ban all surrogacy—whether or not renumeration were offered—would such a ban fall afoul of the Constitution? The privacy argument is not merely theoretical, because it goes straight to the heart of Capron and Radin's thesis. They assert, with considerable eloquence and force, that commercial surrogacy should be banned on the grounds that it is potentially harmful to children. But they put forward no evidence to suggest that children born in surrogacy arrangements are less well off than other children, or even that their chances of thriving are any lesser. If non­coital reproduction is not constitutionally protected, Capron and Radin give us ample reason for the state to intervene, for the state must show only that its intervention is related to a valid governmental interest—e.g., to provide a clear rule in advance about who will be the lawful custodial parent. But if surrogate parents do have a constitutionally protected privacy interest, it is doubtful that Capron and Radin have demonstrated a sufficiently compelling interest to ban it. Their arguments about harm to children are speculative. They express philosophical concerns that Page xi "commodification" would undermine the social fabric, but they provide little data to suggest that children are imperiled. The argument that the child's interests are the most important in assessing surrogacy arrangements was first enunciated by Angela Holder in a seminal article in Law, Medicine & Health Care (12:3, June, 1984). At that time Holder represented a minority, perhaps even an eccentric, view.

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