Surrogate Motherhood as Prenatal Adoption

See, for example, “Surrogate Motherhood Agreements: Contemporary Legal Aspects of a Biblical Notion,” University of Richmond Law Review, 16 (1982): 470; “Surrogate Mothers: The Legal Issues,” American Journal of Law & Medicine, 7 (1981): 338, and Holder Angela , Legal Issues in Pediatrics and Adolescent Medicine (New Haven: Yale University Press, 1985), 8: “Where a surrogate mother decides that she does not want to give the baby up for adoption, as has already happened, it is clear that no court will enforce a contract entered into before the child was born in which she agreed to surrender her baby for adoption.” Emphasis added.

Had the Sterns been informed of the psychologist's concerns as to Ms. Whitehead's suitability to be a surrogate, they might have ended the arrangement, costing the Infertility Center its fee. As Chief Justice Wilentz said, “It is apparent that the profit motive got the better of the Infertility Center.” In the matter of Baby M, Supreme Court of New Jersey, A-39, at 45.

“[W]e think it is expecting something well beyond normal human capabilities to suggest that this mother should have parted with her newly born infant without a struggle…. We … cannot conceive of any other case where a perfectly fit mother was expected to surrender her newly born infant, perhaps forever, and was then told she was a bad mother because she did not.” Id.: 79.

“Father Recalls Surrogate Was ‘Perfect,’” New York Times, Jan. 6, 1987, B2.

Id.

In the matter of Baby M , supra note 2, at 8.

This possibility was suggested to me by Vermazen Susan .

Annas George , “Baby M: Babies (and Justice) for Sale,” Hastings Center Report, 17, no. 3 (1987): 15.

In the matter of Baby M , supra note 2, at 75.

“Anger and Anguish at Baby M Visitation Hearing,” New York Times, March 29, 1988, 17.

New York Times, June 28, 1988, A20.

Dworkin Gerald , “Paternalism,” in Wasserstrom R.A. , ed., Morality and the Law (Belmont, Cal.: Wadsworth, 1971); reprinted in Feinberg J. Gross H. , eds., Philosophy of Law, 3d ed. (Belmont, Cal.: Wadsworth, 1986), 265.

Warnock M. chair, Report of the Committee of Inquiry into Human Fertilisation and Embryology (London: Her Majesty's Stationery Office, 1984).

As summarized in Harris J. , The Value of Life (London: Routledge & Kegan Paul, 1985), 142.

For an argument that kidney-selling need not be coercive, see Brody B.A. Engelhardt H.T. Jr. , Bioethics: Readings and Cases (Englewood Cliffs, N.J.: Prentice-Hall, 1987), 331.

Robertson John , “Surrogate Mothers: Not So Novel after All,” Hastings Center Report, 13, no. 5 (1983): 29; citing Parker P. , “Surrogate Mother's Motivations: Initial Findings,” American Journal of Psychiatry, 140 (1983): 1.

Harris , supra note 14, at 144.

Several authors note that it is both illegal and contrary to public policy to buy or sell children, and therefore contracts that contemplate this are unenforceable. See Cohen B. , “Surrogate Mothers: Whose Baby Is It?,” American Journal of Law & Medicine, 10 (1984): 253; “Surrogate Mother Agreements: Contemporary Legal Aspects of a Biblical Notion,” University of Richmond Law Review, 16 (1982): 469.

Robertson makes a similar point, supra note 16, at 33.

In re Baby “M,” 217 N.J. Super. 372, 525 A.2d 1157 (1987).

Cohen , supra note 18. See also Holder Angela , “Surrogate Motherhood: Babies for Fun and Profit,” Law, Medicine & Health Care, 12 (1984): 115.

Annas , supra note 8, at 14.

See, for example, Robertson , supra note 16, at 32; and Gersz S.R. , “The Contract in Surrogate Motherhood: A Review of the Issues,” Law, Medicine & Health Care, 12 (1984): 107.

Annas , supra note 8.

For discussion of these issues, see Parfit D. , “On Doing the Best for Our Children,” in Bayles M. D. , ed., Ethics and Population (Cambridge, Mass.: Schenkman, 1976); Bayles M.D. , “Harm to the Unconceived,” Philosophy & Public Affairs, 5 (1976): 292; Glover J. , Causing Death and Saving Lives (Harmondsworth, Eng.: Penguin, 1977), 67; Robertson John , “In Vitro Conception and Harm to the Unborn,” Hastings Center Report, 8 (1978): 13; Feinberg J. , Harm to Others (Oxford: Oxford University Press, 1984), 95.

Steinbock Bonnie , “The Logical Case for ‘Wrongful Life’,” Hastings Center Report, 16, no. 2 (1986): 15.

For the distinction between being harmed and being in a harmful state, see Feinberg , supra note 25, at 99.

“Baby M Case Stirs Feelings of Surrogate Mothers,” New York Times, March 2, 1987, B1.