Surrogate Motherhood and the Best Interests of Children

See, for varying views on this topic, Robertson John , “Embryos, Families and Procreative Liberty: The Legal Structure of the New Reproduction,” Southern California Law Review, 59 (1987): 939; O'Brien Shari , “Commercial Conceptions: A Breeding Ground for Surrogacy,” North Carolina Law Review, 65 (1986): 1271. Most other countries that have considered the matter have banned the commercial aspects of surrogacy. See, e.g., Eaton Thomas , “Comparative Responses to Surrogate Motherhood,” Nebraska Law Review, 65 (1986): 686. The British, for example, have outlawed commercial surrogacy. Surrogacy Arrangements Act, 1985, 49 Eliz II. See the report of the Warnock Commission, established by Parliament to study a variety of issues involving reproductive technology, fetal rights, and surrogacy. Department of Health and Social Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology , Warnock Dame Mary , chairman (London: Her Majesty's Stationery Office, July 1984); and Warnock Mary , “Moral Thinking and Government Policy: The Warnock Committee on Human Embryology,” Millbank Memorial Fund Quarterly, 63 (Summer 1985): 504.

Until the seventh century, English fathers could sell their sons until they were seven years old. Older boys had to consent to being sold. Sir Frederick Pollock, and Frederick Maitland. The History of English Law, 2d ed., (Washington, D.C.: Lawyers' Literary Club, 1959): 436.

Presser Stephen , “The Historical Background of the American Law of Adoption,” Journal of Family Law, 11 (1972): 143.

Howe Ruth-Arlene , “Adoption Practice: Issues and Laws, 1958–1983,” Family Law Quarterly, 17 (1983): 173.

See, e.g., Barwin v. Reidy, 307 P.2d 175, N.M. 1957.

See, e.g., A. v. C., 390 S.W.2d 116, Ark. 1965.

See, e.g., Hendrix v. Hunter, 100 S.E.2d 35, Ga. 1959.

In re Baby M, 525 A.2d 1128, 217 N.J. Super. 313 (Superior Ct. Chancery Div. 1987), reversed on appeal, 1988 West Law 6251 (N.J. Supreme Ct., Feb. 3, 1988).

Doe v. Kelley, 2 Human Reproduction Law Rptr 2A1, Circuit Court of Wayne County, Michigan, 1980; also published in Shapiro Michael Spece Roy , Bioethics and Law, pp. 537–42.

Doe v. Attorney General, 307 N.W.2d 438, Mich. 1981.

Kentucky Parenting Associates, Inc. v. Commonwealth of Kentucky, 704 S.W.2d 209, 1986.

The contract is appended to the New Jersey Supreme Court opinion in the case.

See, e.g., Nev. Rev. Stats, section 127.070, Mass. Gen. Laws Ann. C. 210, section 2.

See, e.g., Adoption of McKinsie, 275 S.W.2d 365, Mo. 1955; Note, “Revocation of Parental Consent to Adoption: Legal Doctrine and Social Policy,” University of Chicago Law Review, 28 (1961): 564.

See, e.g., Adoption of Ashton, 97 A 2d 368, Pa 1953

Lumley v. Wagner, 1 De Gex, M & G 616, 1852.

Note, “Rumplestiltskin Revisited: The Inalienable Rights of Surrogate Mothers,” Harvard Law Review, 99 (1986): 1936; Cohen Barbara , “Surrogate Mothers: Whose Baby Is It?,” American Journal of Law & Medicine, 10 (1984): 234.

See Areen Judith , Law, Science and Medicine , at pages 1313–14. See also Newsweek , February 14, 1983, page 76; New York Times January 23, 1983, page 19; New York Times February 7, 1983 page 8; Washington Post Jan 21, 1983, page A11, Washington Post February 3, 1983, page 8.

Levine Robert J. , Ethics and Regulation of Clinical Research, 2d ed. (Baltimore: Urban and Schwarzenberg, 1986), 278.

Warren Samuel D. Brandeis Louis D. , “The Right of Privacy,” Harvard Law Review, 4 (1890): 193.

Meyer v. Nebraska, 262 U.S. 390, 1923.

Pierce v. Society of Sisters, 268 U.S. 510, 1925.

Skinner v. Oklahoma, 316 U.S. 535, 1942.

See, e.g., Jones v. United States, 357 U.S. 495, 1958; Stanford v. Texas, 379 U.S. 476, 1965; Mapp v. Ohio, 367 U.S. 643, 1961.

Aptheker v. Secretary of State, 378 U.S. 500, 1964.

Griswold v. Connecticut, 381 U.S. 479, 1965.

Roe v. Wade, 410 U.S. 113, 1973.

Loving v. Virginia, 388 U.S. 1, 1967.

Harris v. McRae, 448 U.S. 297, 1980.

Eccles Matthew , “The Use of in Vitro Fertilization: Is There a Right to Bear or Beget a Child by Any Available Medical Means?” Pepperdine Law Review, 12 (1985), 1033.

PL 93–348, section 214 (d).

In re Baby M, supra note 8, at 70.

I was co-author of the amicus brief, filed on behalf of Odyssey Institute of Connecticut, in which that issue was raised. Prof. Cyril C. Means, Jr., of New York Law School was the primary author of the brief.

Civil Code of Louisiana, Article 35.

In Moss v. Sandefur, 14 Ark. 381 (1854), for example, a man fathered a child by a slave he had rented from her owner. The Supreme Court of Arkansas held that if he wanted his child, he had to buy it from the mother's owner.

Yates v. Keane, #9758 and #9772, slip op., Mich. Circuit Ct., Jan. 21, 1988 (less than two weeks prior to the Baby M decision.)

See, e.g., Barrow v. State, 74 S.E.2d 467, Ga. 1953; Walker v. Walker, 266 So.2d 385, Fla. 1972; State v. Bowen, 498 P.2d 977, Wash. 1972; Commonwealth v. Pewatts, 186 A.2d 408, Pa. 1962; Wilson v. Caswell, 172 N.E. 251, Mass. 1930.

E.g., Holder Angela , “Client Autonomy and Divorce Negotiations,” Family Law, 17 (1977): 11.

E.g., Esmond v. Liscio 224 A.2d 793, Penh. 1966; Wilson v. Maryland Casualty 105 A.2d 304, Pa. 1954; Glesby v. Hartford Accident and Indemnity Co., 44 P.2d 365, Cal. 1935.