Baby M,the Surrogacy Contract,and the Health Care Professional: Unanswered Questions

In re Baby M, 14 FLR 2007 (N.J. Sup. Ct. 1988).

13 FLR 2001, 217 N.J. Super. 313 (1987).

Nevertheless, the Supreme Court did defer to the trial court in granting custody to William Stern, the natural father, as serving the best interests of Baby M. It voided the adoption by Elizabeth Stern, however, and restored the parental rights of the natural mother, Mary Beth Whitehead, including her right to visitation.

14 FLR at 2022.

Id.: 2018.

Id.: 2008, emphasis added.

Id.

14 FLR at 2027.

Id.: 2011.

See ACOG Statement of Policy, “Ethical Issues in Surrogate Motherhood,” May 1983; American Medical Association, “Report of the Judicial Council, Report B” (1–84) and related documentation; American Fertility Society, “Surrogate Mothers” (Chapter 25 of Ethical Considerations of the New Reproductive Technologies), Fertility and Sterility, 46 (1986): Supp. 1, 62S–68S.

See Letter from Sammons James H. , M.D., AMA executive vice president, to Robert Robinson, chairman, Drafting Committee on “Status of Children of the New Biology” (Sept. 22, 1987).

ACOG Statement of Policy, supra note 10.

See American Fertility Society, “Surrogate Mothers,” supra note 10.

Id.: 67S.

Id.: 68S

14 FLR at 2008.

N.J.S.A. 9:3–54. See 14 FLR at 2012, note 4.

14 FLR at 2017.

Id.

See Katz, “Surrogate Motherhood and the Baby-Selling Laws,” Columbia Journal of Law & Social Problems, (1986): 1, 8–9, n. 34 (lists state statutes prohibiting payment for adoption).

Id. See also Cohen Friend , “Legal and Ethical Implications of Surrogate Mother Contracts,” Clinics in Perinatology, 14 (1987): 281, 284.

See Gostin Larry , “Introduction,” in this issue, for a discussion of these statutes.

The president of Surrogate Parenting Associates, the subject of a protracted legal battle in Kentucky, was a physician who was “paid a fee by the biological father for selection and artificial insemination of the surrogate mother.” See Surrogate Parenting Associates, Inc. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209, 211 (Kentucky 1986); see also Karnezis , “Criminal Liability of One Arranging for Adoption of Child Through Other Than Licensed Child Placement Agency (‘Baby Broker Acts’),” 3 ALR 4th 468; Montana Dept. of Social & Rehab. Services v. Angel, 577 P.2d 1223 (Montana 1978) (physician enjoined from placing children for adoption without a license, but court did not discuss criminal liability for baby-selling).

14 FLR at 2016.

13 FLR at 2008.

14 FLR at 2016.

Id.: 2017.

Id.: 2016.

Id.: 2017.

Id.: 2028, App. A, “Surrogate Parenting Agreement,” par. 6, emphasis added.

Id.: 2017.

See, e.g., Parker , “Surrogate Motherhood, Psychiatric Screening and Informed Consent, Baby Selling, and Public Policy,” Bulletin of the American Academy of Psychiatry Law, 12 (1984): 21.

14 FLR at 2017.

Id.: 2016, n. 9.

Id.: 2030, App. B, “Agreement,” par. 10.

Id.: Par. 11.

13 FLR at 2012.

14 FLR at 2029, App. A, par. 17.

Id.: 2017.

For a recent article summarizing such legislative proposals see Note, “Surrogate Motherhood Legislation: A Sensible Starting Point,” Indiana Law Review, 20 (1987): 879, 892–94.

Id.: 894.

See, gen., King , “Reproductive Technologies,” BioLaw, 1 (1986): 113, 115–17, 122–24.

See, e.g., Ga. Code §43-34-42 (1982).

14 FLR at 2028, App. A, par. 3, emphasis added.

Id.: 2029, App. A, par. 13.

13 FLR at 2009.

14 FLR at 2028, App. A, par. 10.

Id.

Id.: 2029, App. A, par. 13.

13 FLR at 2019.

410 U.S. 113 (1973).

13 FLR at 2019.

14 FLR at 2029, App. A, par.

One might find this analogous to the situation that led to the distinction between the duties of “treating” and “examining” physicians in some jurisdictions. See, e.g., Ahnert v. Wildman, 376 N.E.2d 1182 (Ind. App. 1978).

14 FLR at 2029, App. A, par. 15.

See ACOG Statement of Policy, supra note 10 and accompanying text.

14 FLR at 2028, App. A, par. 4(c)(1).

Id.: 2009.

Id.: 2028, App. A, par. 7.

Id.: 2009.

New York Times, Jan. 23, 1983, sec. 1, p. 19. In fact, it was this case that may have motivated the AMA and ACOG to first address the issue.

See, e.g., “Model Human Reproductive Technologies and Surrogacy Act,” Iowa Law Review, 72 (1987): 943, 960–62.

See, e.g., Draft Legislation of the National Commissioners on Uniform State Laws, “Status of Children of the New Biology,” Surrogacy Provision (1987).

See Areen , “Handicapped Child Becomes ‘Damaged Goods’,” New Jersey Law Journal, 21 (Feb. 18, 1988): 25, 26; Krimmel , “The Case Against Surrogate Parenting,” Hastings Center Report, 35 (Oct. 1983).

New England Journal of Medicine , 317 (Nov. 19, 1987): 1351; see also Areen , supra note 64.