Surrogate Parenting: Social,Legal and Ethical Implications

On March 31, 1987 Judge Harvey R. Sorkow upheld the surrogate contract, awarded custody of the child to the biological father (William Stern), terminated all parental rights of the biological mother Mary Beth Whitehead) and arranged an expeditious adoption by Mrs. Stern on the same date. The case at the time of this writing is under appeal. On April 10, 1987 the New Jersey Supreme Court ruled that Mrs. Whitehead could resume weekly visits. The Court is scheduled to hear the appeal in September, 1987.

See Bayles Michael Reproductive Ethics, (New Jersey: Prentice Hall, 1984). pp. 23–24, Diana Brahams, a British lawyer, has also described the surrogate child as being “hatched.”(See Brahams, D. “The Hasty British Ban on Commercial Surrogacy”, Hastings Center Report. February, 1987. Vol. 17, No. 1, p. 17).

In in vitro fertilization, a donated egg is utilized and placed in a recipient uterus. This does not necessarily involve a genetic link between the infant and the adoptive father nor the gestational mother. In this specific instance it might be thought that the term “surrogate mother” is appropriate. If the “reproductive apparatus” were disembodied from the woman's hormonal, physiological and psychological makeup, she might, in some sense, be a surrogate. Such a separation does not occur even though there may be no obvious genetic linkage in this instance. What is clear is that in virtually all pregnancies a bonding between the mother and child does take place. What is less clear but still important is even though there may be no genetic linkage there may still be an “imprint” (psychological, biochemical etc.) of the mother on the child. Our discussion, however, will deal primarily with the typical situation in which the ovum comes from the biological mother.

Although “parent” has its origin in “begetting” (parens: to give birth), usage has come to associate it with the idea of raising or rearing. Mother or fat her has perhaps a closer link to biological origins. Although admittedly not precise, we will nonetheless use parenting in the sense of raising.

This occurred in at least one instance after the birth of a severely defective child. The child was rejected by the potential adopting couple and was shown to be the child of the spouse of the biological mother, not the contracting male who had also provided sperm.

In 1985 the Surrogacy Arrangements Act was passed which made it a criminal offense for third parties to benefit from commercial surrogacy.

Robertson J.A. “Surrogate Mothers Not So Novel After All”. The Hastings Center Report, Vol. 13, No. 5, Oct. 1983, p. 29.

Noel Keane, the attorney who arranged the baby in the “Baby M” case, is reported to have received a $10,000 fee. An additional payment to the woman of $10,000 and $5,000 for “insurance, medical bills and maternity clothes” is typically involved. (New York Times Magazine. March 29, 1987, p. 35).

C.F. Robertson argues that although the $25,000+ fees required make surrogate parenting a “consumption item for the middle class”, it is “not unjust to poor couples, for it does not leave them worse off than they were”. Although there may be some apparent initial financial gain, harm done not only through social and psychological channels, but also health risks, are very real considerations. Robertson also notes later, in seeming contradiction to his initial statement, that “the money is hardly adequate compensation” (p. 32).

This is meant in the physical or reproductive sense and not to indicate “intellectual lusting.” Conceptional adultery refers then to the impregnation of someone other than his spouse by a married man. It has both ethical and legal meaning.

New York Times. March 8, 1987.

Pope John Paul II Instructions on Respect for Human life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day. Feb. 22, 1987.

See Reno Gazette-Journal, Jan. 26, 1987. quoting Dr. Geoffry Sher, co-director of the Northern Nevada Fertility Clinic, discussing in vitro fertilization: “Some say we have no right to make a profit … but that is ludicrous. The profit motive is what drives this country.” “… What we are doing will be a big industry in the future, and we want to be there when it happens. We see the future as being very profitable.” (p. E7).