Surrogate parenting refers to an arrangement between a married couple
who is unable to have a child because of the wife’s infertility and a fertile
woman who agrees to conceive the husband’s child through artificial insemination,
carry it to term, then surrender all parental rights in the child. Often, the
surrogate mother receives compensation for her services. The final step in the
process is typically the father’s acknowledgment of paternity and adoption, with
his wife, of the child. Through surrogate motherhood, a couple desiring a child
need not wait an indefinite number of years for an adoptable baby, as generally
happens at the present time. The married couple obtains a child who is the
husband’s biological offspring- a child for whose existence both husband and
wife can feel responsible.
Surrogate parenting is highly controversial by its very nature.
Nevertheless, surrogate parenting is attracting wide spread attention as a
viable alternative for infertile couples intent on having a child. Contract
surrogacy is officially little more than ten years old, although surrogate
mothering is a practice that has been known since biblical times. In 1986 alone
500 babies had been born to mothers who gave them up to sperm donor fathers for
a fee, and the practice is growing rapidly.
For this reason there are many questions and doubts that arise from this
subject. Often there are many legal difficulties that come about with surrogate
In some states the contracts that insure the infertile couple the
baby of the surrogate mother mean nothing. This, in turn, can cause huge
problems if the surrogate mother were to change her mind about giving up her
child. Who has the rights to the child in this awful situation? Surrogate
parenting is a wonderful alternative for infertile couples as long as all
party’s involved are educated on the subject and are fully aware of the pros
and cons of this risky business transaction.
Unfortunately laws on surrogate parenting aren’t very helpful.
Increasing numbers of surrogate custody cases are finding their way into the
courtrooms. The most dramatic problem arises when the surrogate mother decides
she wants to keep the baby.
Whether she decides early or late in the pregnancy,
at birth, or after the child is born, the ultimate issue is whether she or the
infertile couple have parental rights.
How is the law to respond to this kind of problem? Normally people
would agree that a contract is a contract and therefore the infertile couple
should be the ones to receive the baby. Unfortunately for some of us more
sympathetic people this decision is not that simple. By changing her mind the
surrogate mother is showing maternal feelings that are surely not reprehensible.
Although she has promised to give up the baby her change of heart seems more
understandable than dishonorable. After all how can a woman truly be expected
to know how it will feel to give birth to a child and then have to give it up?
These are very good questions that tend to leave one undecided as to which
party’s demand is justifiable and should be upheld.
Instead of deciding surrogacy issues on the basis of the law and policy
of the states, judges could look for guidance from the U.S. Constitution.
Constitutional arguments can be made on both sides of the classic surrogacy
dispute involving the mother who changes her mind about giving up her child.
Resolution of the constitutional issues will depend ultimately upon assessing
and weighing the various factors at stake. Like decisions based on contract and
criminal law, constitutional decisions will take account of the party’s
interests, the child’s interests, society’s interests, and the effectiveness of
legalization and regulation as opposed to prohibition.
Many Americans remained unaware of these dramas, but virtually everyone
in the United States became aquainted during 1987 with the plight of Mary Beth
Whitehead and Baby M. Mrs. Whitehead was a twenty-nine year old house wife.
She already had two children, and decided she would be the surrogate mother for
a couple by the name of Mr. and Mrs. William and Elizabeth Stern.
were 40 and 41 years old. They had been married for 12 years and were childless.
Mrs. Stern had a mild case of multiple sclerosis and was unable to bare any
Although Whitehead promised in the contract that she would form no bond
with the baby, she knew in the delivery room she could not give up her child.
Whitehead ended up kidnapping the new born.
The case proceeded to a much-
publicized trial entailing six .