18: Surrogacy and Parentage of Children

Case in Point: Johnson v. Calvert, 5 Cal 4^th 84, 851 P.2d 776 (1993).

Synopsis

This case involved a gestational surrogacy, in which the egg and sperm of the intended parents, Mark and Crispina Calvert, were combined using IVF and implanted in the uterus of the surrogate, Anna Johnson. The child was thus genetically related to both intended parents (the Calverts) and not at all genetically related to the surrogate (Johnson). After Johnson became pregnant and before the baby was born, both Johnson and Crispina Calvert filed separate legal actions to be declared the child’s legal mother. The lower courts determined that the Calverts were the child’s legal parents and that, as a “genetic stranger” to the child, Johnson was not the child’s legal mother.

Excerpts

Following are excerpts from the opinion affirming the Court of Appeals’ determination and stating that the question of who the child’s legal mother is should be based on which woman was intended to be the mother (citations and references to other authorities within the opinion are omitted).

In this case we address several of the legal questions raised by recent advances in reproductive technology [w]hen, pursuant to a surrogacy agreement, [an embryo resulting from the sperm and egg] of a husband and wife is implanted in the uterus of another woman, who carries the resulting fetus to term and gives birth to a child not genetically related to her …. We conclude that the husband and wife are the child's natural parents, and that this result does not offend the state or federal Constitution or public policy.

Crispina was forced to undergo a hysterectomy in 1984. Her ovaries remained capable of producing eggs, however, and … Mark, Crispina, and Anna signed a contract providing that an embryo created by the sperm of Mark and the egg of Crispina would be implanted in Anna and the child born would be taken into Mark and Crispina's home "as their child." Anna agreed she would relinquish "all parental rights" to the child in favor of Mark and Crispina. In return, Mark and Crispina would pay Anna $10,000 in a series of installments, the last to be paid six weeks after the child's birth.

The child was born on September 19, 1990, and blood samples were obtained from both Anna and the child for analysis. The blood test results excluded Anna as the genetic mother. [T]he parties stipulated that Mark and Crispina were the child's genetic parents.

Anna, of course, predicates her claim of maternity on the fact that she gave birth to the child. The Calverts contend that Crispina's genetic relationship to the child establishes that she is his mother.

Because two women each have presented acceptable proof of maternity, we do not believe this case can be decided without enquiring into the parties' intentions as manifested in the surrogacy agreement. Mark and Crispina are a couple who desired to have a child of their own genes but are physically unable to do so without the help of reproductive technology. They affirmatively intended the birth of the child, and took the steps necessary to effect in vitro fertilization. But for their acted-on intention, the child would not exist. Anna agreed to facilitate the procreation of Mark's and Crispina's child. The parties' aim was to bring Mark's and Crispina's child into the world, not for Mark and Crispina to donate a zygote to Anna. Crispina from the outset intended to be the child's mother. Although the gestative function Anna performed was necessary to bring about the child's birth, it is safe to say that Anna would not have been given the opportunity to gestate or deliver the child had she, prior to implantation of the zygote, manifested her own intent to be the child's mother. No reason appears why Anna's later change of heart should vitiate the determination that Crispina is the child's natural mother.

We conclude that … she who intended to procreate the child-that is, she who intended to bring about the birth of a child that she intended to raise as her own-is the natural mother under California law.

Anna urges that surrogacy contracts violate several social policies. Relying on her contention that she is the child's legal, natural mother, she cites the public policy … prohibiting the payment for consent to the adoption of a child. She argues further that the policies underlying the adoption laws of this state are violated by the surrogacy contract because it in effect constitutes a pre-birth waiver of her parental rights.

We disagree. … The parties voluntarily agreed to participate in in vitro fertilization and related medical procedures before the child was conceived; at the time when Anna entered into the contract, therefore, she was not vulnerable to financial inducements to part with her own expected offspring. As discussed above, Anna was not the genetic mother of the child. The payments to Anna under the contract were meant to compensate her for her services in gestating the fetus and undergoing labor, rather than for giving up "parental" rights to the child. Payments were due both during the pregnancy and after the child's birth. We are, accordingly, unpersuaded that the contract used in this case violates … public policies.

It has been suggested that gestational surrogacy may run afoul of prohibitions on involuntary servitude. Involuntary servitude has been recognized in cases of criminal punishment for refusal to work. We see no potential for that evil in the contract at issue here, and extrinsic evidence of coercion or duress is utterly lacking.

Finally, Anna and some commentators have expressed concern that surrogacy contracts tend to exploit or dehumanize women, especially women of lower economic status. Anna's objections center around the psychological harm she asserts may result from the gestator's relinquishing the child to whom she has given birth. Some have also cautioned that the practice of surrogacy may encourage society to view children as commodities, subject to trade at their parents' will.

We are all too aware that the proper forum for resolution of this issue is the Legislature, where empirical data, largely lacking from this record, can be studied and rules of general applicability developed. However, in light of our responsibility to decide this case, we have considered as best we can its possible consequences.

We are unpersuaded that gestational surrogacy arrangements are so likely to cause the untoward results Anna cites as to demand their invalidation on public policy grounds. Although common sense suggests that women of lesser means serve as surrogate mothers more often than wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than an economic necessity, in general, exploits them by inducing them to accept lower-paid or otherwise undesirable employment. We are likewise unpersuaded by the claim that surrogacy will foster the attitude that children are mere commodities; no evidence is offered to support it. The limited data available seem to reflect an absence of significant adverse effects of surrogacy on all participants.

The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother and to deny intending parents what may be their only means of procreating a child of their own genes. Certainly, in the present case, it cannot seriously be argued that Anna, a licensed vocational nurse who had done well in school and who had previously borne a child, lacked the intellectual wherewithal or life experience necessary to make an informed decision to enter into the surrogacy contract.

Case in Point: Belsito v. Clark, 644 N.E.2d 760 (Ohio C.P. 1994).

Synopsis

This case involved a gestational surrogacy, in which the egg and sperm of the intended parents, Anthony and Shelly Belsito, were combined using IVF and implanted in the uterus of the surrogate, Carol Clark (Shelly’s younger sister). The child was thus genetically related to both intended parents (the Belsitos). After Clark became pregnant and before the baby was born, the Belsitos filed a legal action to be declared the child’s legal parents, without the requirement that they adopt the child being carried by Clark; the child otherwise would have been treated as the non-marital child of Anthony Belsito and Clark under Ohio law.

Excerpts

Following are excerpts from the opinion that the determination of who is the child’s legal parents is based on who provided the genetics (the egg and sperm) of the child (citations and references to other authorities within the opinion are omitted)

… Clark is the gestational surrogate, and the genetic makeup of the child she carries has been determined by the egg and the sperm of Shelly Belsito and Anthony Belsito. The court is of the opinion that the law requires that, because Shelly Belsito and Anthony Belsito provided the child with its genetics, they must be designated as the legal and natural parents.

Since plaintiffs, Anthony Belsito and Shelly Belsito, have alleged that they are the natural parents and not subject to the adoption laws of this state, the analysis of the law must be confined to the question of what constitutes or identifies a "natural parent."

While various terms are used to identify a natural parent, a review of case law leads to the conclusion that "natural parent" refers to the child and parent being of the same blood or related by blood.

In Johnson v. Calvert, the facts are very similar to this case …. The court in Johnson looked for the intent to procreate and to raise the child, in order to identify the natural mother. Since the genetic mother in Johnson intended to procreate, she was the natural parent. The Johnson court discarded both genetics and birth as the primary means of identifying the natural maternal parent and replaced both with a test that involves the intent of the parties.

Intent can be difficult to prove. Even when the parties have a written agreement, disagreements as to intent can arise. In addition, in certain fact patterns when intent is clear, the Johnson test of intent to procreate and raise the child may bring about unacceptable results. As an example, who is the natural parent if both a nongenetic-providing surrogate and the female genetic provider agree that they both intend to procreate and raise the child? It is apparent that the Johnson test presents problems when applied.

The first area of conflict is the surrender of parental rights by agreement. It has long been recognized that, as a matter of public policy, the state will not enforce or encourage private agreements or contracts to give up parental rights. Through the intent to procreate, the Johnson case allows the nongenetic carrier/surrogate to be designated as the natural mother. The possibility of recognition as a parent means that a potential right is implicit in any agreement or contract to act as a gestational surrogate. A surrogate who chooses not to be the natural parent forfeits her right to be considered the natural and legal parent. Because a fee is often involved in a surrogacy service, that assent amounts to selling a parental right and is in contradiction to the public policy against private contracts to surrender parental rights.

The second area of conflict involves several aspects of the underlying public policy of adoption law. Adoption laws of Ohio have long required that a relinquishing natural mother be given an unpressured opportunity before a disinterested magistrate to surrender her parental rights. Considering the substantial rights involved, the possible financial pressures, and the value our society places on procreation, the need for such procedures is evident.

Due to the surrogate's similarity to an adopting parent, the same concerns that brought about the foregoing adoption procedure and public policy exist in surrogacy births in which the surrogate retains the child. The Johnson court's formulation of the intent-to-procreate test does not address those underlying concerns. It does not allow for the unpressured surrender of potential parental rights, nor does it provide a means to review and ensure the suitability of the gestational surrogate or her spouse as parents. In addition, because it is based on a private agreement or intent that has not been sanctioned by a court proceeding, it raises the question of future legal challenges and thus undermines the stability of the child-parent relationship. The Johnson intent formulation ignores those concerns and relies on the whims of private intent and agreement. It is, in effect, a private adoption process that is readily subject to all the defects and pressures of such a process.

The final objection this court has to the Johnson intent-to-procreate test is its failure to fully recognize the genetic provider as having the right to choose or to consent. By subordinating the consent of the genetic-providing individual to the intent to procreate of the surrogate who intends to keep and raise the child, the Johnson court has deemphasized what should be considered a basic right. The procreation of a child, that is, the replication of the unique genes of an individual, should occur only with the consent of that individual. The decision to allow the implantation of another's egg and sperm with the understanding that the surrogate will raise the resulting child also involves the surrendering of parental rights. The consent to procreation and the surrender of the right to raise a child of one's own genes must be considered the surrender of basic rights.

As has been stated, there is abundant precedent for using the genetics test to identify a natural parent. For the best interest of the child and society, there are strong arguments to recognize the genetic parent as the natural parent. The genetic parent can guide the child from experience through the strengths and weaknesses of a common ancestry of genetic traits. Because that test has served so well, it should remain the primary test for determining the natural parent, or parents, in nongenetic-providing surrogacy cases.

The test to identify the natural parents should be, "Who are the genetic parents?" When dealing with a nongenetic-providing surrogate, such a rule minimizes or avoids the question of the surrogate selling her right to be determined the natural parent. Since she has not contributed to the genetics of the child, and the genetic parent or parents have not waived their rights, she cannot be determined the natural parent. She cannot sell a right she does not have. In addition, given the relative certainty of DNA blood testing, such a foundation or test for parental identity would be simpler to apply and more certain in results than a Johnson-type intent test.

In conclusion, under Ohio law, when a child is delivered by a gestational surrogate who has been impregnated through the process of in vitro fertilization, the natural parents of the child shall be identified by a determination as to which individuals have provided the genetic imprint for that child. If the individuals who have been identified as the genetic parents have not relinquished or waived their rights to assume the legal status of natural parents, they shall be considered the natural and legal parents of that child.

Case in Point: In the Matter of Baby M., 109 N.J. 396, 537 A. 2d 1227 (1988)

Synopsis

This case involved a traditional surrogacy, in which the surrogate, Mary Beth Whitehead, was artificially inseminated with the sperm of the intended father, William Stern. As a result, the surrogate, Mary Beth, was genetically related to the child. William Stern’s wife, Elizabeth, had Multiple Sclerosis which made pregnancy a serious health risk. William Stern and Mary Beth entered into a contract under which Mary Beth and her husband Richard Whitehead (who was also a party to the contract), agreed that Mary Beth would become pregnant, carry the child to term, and then Mary Beth and Richard would undertake all steps necessary to terminate their parental rights so that Elizabeth Stern could adopt the baby. Although Elizabeth was not a party to the contract, the contract gave her sole custody of the baby in the event of William’s death.

Excerpts

Following are excerpts from the opinion determining that the surrogacy contract was invalid and unenforceable (citations and references to other authorities within the opinion are omitted)

One of the surrogacy contract's basic purposes, to achieve the adoption of a child through private placement, though permitted in New Jersey "is very much disfavored." Its use of money for this purpose, and we have no doubt whatsoever that the money is being paid to obtain an adoption and not, as the Sterns argue, for the personal services of Mary Beth Whitehead is illegal and perhaps criminal. In addition to the inducement of money, there is the coercion of contract: the natural mother's irrevocable agreement, prior to birth, even prior to conception, to surrender the child to the adoptive couple. Such an agreement is totally unenforceable in private placement adoption. Even where the adoption is through an approved agency, the formal agreement to surrender occurs only after birth and then, by regulation, only after the birth mother has been offered counseling. Integral to these invalid provisions of the surrogacy contract is the related agreement, equally invalid, on the part of the natural mother to cooperate with, and not to contest, proceedings to terminate her parental rights, as well as her contractual concession, in aid of the adoption, that the child's best interests would be served by awarding custody to the natural father and his wife all of this before she has even conceived, and, in some cases, before she has the slightest idea of what the natural father and adoptive mother are like.

The foregoing provisions not only directly conflict with New Jersey statutes but also offend long-established State policies. These critical terms, which are at the heart of the contract, are invalid and unenforceable; the conclusion therefore follows, without more, that the entire contract is unenforceable.

Mrs. Whitehead, shortly after the child's birth, had attempted to revoke her consent and surrender by refusing, after the Sterns had allowed her to have the child "just for one week," to return Baby M to them. The trial court's award of specific performance therefore reflects its view that the consent to surrender the child was irrevocable. We accept the trial court's construction of the contract; indeed it appears quite clear that this was the parties' intent. Such a provision, however, making irrevocable the natural mother's consent to surrender custody of her child in a private placement adoption, clearly conflicts with New Jersey law.

The surrogacy contract's invalidity, resulting from its direct conflict with the above statutory provisions, is further underlined when its goals and means are measured against New Jersey's public policy. The contract's basic premise, that the natural parents can decide in advance of birth which one is to have custody of the child, bears no relationship to the settled law that the child's best interests shall determine custody.

The surrogacy contract guarantees the permanent separation of the child from one of its natural parents. Our policy, however, has long been that to the extent possible, children should remain with and be brought up by both of their natural parents. … This is not simply some theoretical ideal that in practice has no meaning. The impact of failure to follow that policy is nowhere better shown than in the results of this surrogacy contract. A child, instead of starting off its life with as much peace and security as possible, finds itself immediately in a tug-of-war between contending mother and father.

The surrogacy contract violates the policy of this State that the rights of natural parents are equal concerning their child, the father's right no greater than the mother's. … The whole purpose and effect of the surrogacy contract was to give the father the exclusive right to the child by destroying the rights of the mother.

Under the contract, the natural mother is irrevocably committed before she knows the strength of her bond with her child. 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.

Although the interest of the natural father and adoptive mother is certainly the predominant interest, realistically, the only interest served, even if they are left with less than what public policy requires. They know little about the natural mother, her genetic makeup, and her psychological and medical history. Moreover, not even a superficial attempt is made to determine their awareness of their responsibilities as parents.

Worst of all, however, is the contract's total disregard for the best interests of the child. There is not the slightest suggestion that any inquiry will be made at any time to determine the fitness of the Sterns as custodial parents, of Mrs. Stern as an adoptive parent, their superiority to Mrs. Whitehead, or the effect on the child of not living with her natural mother.

This is the sale of a child, or, at the very least, the sale of a mother's right to her child, the only mitigating factor being that one of the purchasers is the father. Almost every evil that prompted the prohibition on the payment of money in connection with adoptions exists here.

The point is made that Mrs. Whitehead agreed to the surrogacy arrangement, supposedly fully understanding the consequences. Putting aside the issue of how compelling her need for money may have been, and how significant her understanding of the consequences, we suggest that her consent is irrelevant. There are, in a civilized society, some things that money cannot buy. In America, we decided long ago that merely because conduct purchased by money was "voluntary" did not mean that it was good or beyond regulation and prohibition. … There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life. Whether this principle recommends prohibition of surrogacy, which presumably sometimes results in great satisfaction to all of the parties, is not for us to say. We note here only that, under existing law, the fact that Mrs. Whitehead "agreed" to the arrangement is not dispositive.