Gestational Surrogacy and the Health Care Provider: Put Part of the “IVF Genie” Back into the Bottle

Johnson v. Calvert, No. 63-31-90 (Orange Cty. Super. Ct. Calif. October 22, 1990). Gestational surrogacy is used in combination with in vitro fertilization. The fertilized egg of the genetic mother with the sperm of the genetic father or a sperm donor in vitro is transferred into the uterus of the surrogate, who is the birth mother. This differs from what I will term “genetic surrogacy” in which both the egg and gestation are provided by the surrogate, as was the case with Mary Beth Whitehead. Since the first birth in 1986, there have been about 80–100 births by gestational surrogates in this country. (cite) Non-commercial gestational surrogacy is also practiced at Bourn Hall Clinic, Britain's leading IVF clinic near Cambridge, England. See The Sunday Times, Aug. 19, 1990.

Id.

Facts reported in The Los Angeles Times, October 23, 1990, Part A, p. 1, col. 5.

Additional facts about the case provided through personal interviews with the lawyers for Anna Johnson and the Calverts (October 1990).

Johnson v. Calvert, No. 63-31-90 (Orange Cty. Super. Ct. Calif. October 22, 1990).

See The National Law Journal, November 5, 1990, p.36.

Since the New Jersey Supreme Court declared the surrogacy contract unenforceable in In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988), I have been cautioning health professionals to seriously consider the unanswered ethical and legal questions raised by surrogacy. See, e.g., Rothenberg, “Surrogacy and the Health Care Professional: Baby M and Beyond,” in Gostin (ed.), Surrogate Motherhood: Politics and Privacy (Ind. Univ. Press 1990).

See, e.g., Adams, “State Legislative Report: Surrogate Parenting Contract Legislation Enacted: 1987, 1988 and 1989 Legislative Sessions,” National Conference of State Legislatures Vol. 15, No. 2 (1990). See also “1990 Update” (July 1990).

Id. Arizona (1989 Ariz. Sess. Laws 14); Florida (Fla. Stat. Sec. 63.212(1) (1988) although allowing for preplanned adoption arrangements with specific terms); Indiana (Ind. Code Sec. 31-8-2-1– to 31-8-2-3) (1988) sets out rights for the surrogate if an agreement is entered into; Kentucky (Ky. Rev. Stat. Sec. 199.590 (1988); Louisiana (La. Rev. Stat. Ann. Sec. 9:2713 (1987); Michigan (Mich. Comp. Laws, Sec. 722.851–722.863 (1988); Nebraska (Ne. Rev. Stat. 674 (1988); Nevada (Nev. Rev. Stat. 127.303.5 (1987); North Dakota (1989 N.D. Sess. Laws 184); Utah (1989 Utah Laws 140); Washington (1989 Wash. Laws 404).

Louisiana and Kentucky just discuss surrogacy by insemination, with no discussion of gestational services and/or surrogacy by embryo transfer.

1989 Ark. Acts 647.

New Hampshire, HB-1426-FN, Chapter 87 (1990).

The Uniform Status of Children of Assisted Conception Act, drafted by the National Conference of Commissioners on Uniform State Laws (1988), provides for one alternative that declares surrogacy contracts unenforceable (the alternative adopted by North Dakota) and it establishes that the birth mother is the legal mother. The other alternative, not adopted by any legislature, does provide that a surrogate who also provides the egg can change her mind within 180 days after the last insemination, but makes no similar provision for the gestational surrogate. There is no discussion on why the distinction was made, but this provision was a major political compromise.

See New York State Task Force on Life and the Law, Surrogate Parenting: Analysis and Recommendations for Public Policy, (New York May 1988); New Jersey Task Force on New Reproductive Practices, “Policy Recommendations on Surrogacy” (New Jersey July 1990).

The Committee did conclude that voluntary, unpaid, surrogate parenting arrangements should be allowed and should proceed consistent with other adoption practices. “Commercial and Noncommercial Surrogate Parenting,” Report of the Joint Legislative Committee on Surrogate Parenting to the California State Legislature 22 (Nov. 1990).

See generally Stepan (ed.), International Survey of Laws on Assisted Procreation (Zurich 1990) (hereinafter “Survey”). The Ontario Law Reform Commission and a recent Australian National Bioethics Consultative Committee report do recommend limited approval and strict regulation of supervised, non-commercial surrogacy contracts.

See Survey, supra note 16.

Bulgaria Family Code, Art 31 (May 1985), reprinted in Survey, supra note 16 at 95.

Israeli Public Health (In Vitro Fertilization) Regulations, Ministry of Health (1987) at sec. 11, reprinted in Survey, supra note 16 at 121, 124.

Norwegian Law on Artificial Fertilization, No. 68, Chapter III (1987), reprinted in Survey at 139, 141; Swedish Law on Fertilization Outside the Human Body, No. 711, at 2 (1988), reprinted in Survey, supra note 16 at 172.

Spanish Law on Assisted Reproduction Procedures, No. 35/1988, Chapter 10 (1988), reprinted in Survey, supra note 16 at 157, 161.

United Kingdom Surrogacy Arrangements Act (1985), reprinted in Survey, supra note 16 at 184.

See Reproductive Rights Reporter, Vol. II, No. 19 at 8 (Oct. 26, 1990).

Council of Europe, Human Artificial Procreation, Principle 14 at 28–29 (Strasbourg 1989).

Id. Principle 15 at 29–30.

Id.

Opinions of the A.M.A. Council on Ethical and Judicial Affairs (Dec. 1988).

Ethics Committee of the American Fertility Society, Ethical Considerations of the New Reproductive Technologies, “Surrogate Gestational Mothers” (Chapter 21 at 64S-67S) & “Surrogate Mothers” (Chapter 22 at 68S-73S), 53 Fertility and Sterility (1990).

American College of Obstetrics and Gynecology, Committee on Ethics, “Ethical Issues in Surrogate Motherhood,” No. 88 (Nov. 1990)(hereinafter “ACOG Committee Opinion”).

Id. at 2.

Id.

Id. at 4–5.

British Medical Association, “Surrogacy: Ethical Considerations—Report of the Working Party on Human Infertility Services” (Aug. 1990) (hereinafter “BMA”).

In fact, the Swiss Academy of Medicine continues to express general hostility to the use of IVF and embryo transfer in conjunction with surrogacy.

BMA, supra note 33 at 28. See Human Fertilization and Embryology Law (1990).

BMA, supra note 16 at 28–30.

Id. at 41.

Many of the problems are inherent in noncommercial, as well as commercial surrogacy. For an outstanding discussion on why noncommercial surrogacy cannot be treated as a “mere act of altruism” and why reproductive gift-giving must be critically evaluated in the context of women's political inequality, see Raymond, “Reproductive Gifts and Gift Giving: The Altruistic Woman,” Hastings Center Report 7 (Nov./Dec. 1990).

There are at least five other cases pending in lower and appellate courts around the country, according to Sharon DeAngelo, co-founder of the Washington, D.C.-based National Coalition Against Surrogacy. The National Law Journal, Oct. 8, 1990. See also, infra note 59 for discussion of tort actions by Anna Johnson and Mary Beth Whitehead.

HB 1426-FN, New Hampshire Laws, Chapter 87 (1990).

See generally Harrison, “Psychological Ramifications of ‘Surrogate’ Motherhood,” in Scotland (ed.), Psychiatric Aspects of Reproductive Technology 97 (1990).

No. 89-045388 (Harris Cty. Tex. 1990).

Id. Follow up discussions with the attorneys representing the estate of Ms. Mounce and Dr. Hanson (October 1990).

Numerous newspaper accounts of the testimony and discussions with the lawyers state that this information was not shared. In fact, the court opinion notes that “the Calverts were relying on Anna's representations, and arguably omissions, because there are some things she didn't tell them about her experience.” The National Law Journal, Nov. 5, 1990, p.36.

See supra notes 19–20 and accompanying text.

ACOG Committee Opinion, supra note 29 at 4–5.

HB 1426-FN, New Hampshire Laws, Chapter 87 (1990).

See supra note 9 and accompanying text.

See supra note 1. The appeal was filed to the 4th District Court of Appeals on October 25, 1990.

See ACOG Committee Opinion, supra note 29 at 5. The Committee did not specifically address the inherent conflict of interest of the IVF program provider at the time of embryo transfer. Discussion with Elaine Locke, staff to ACOG Committee on Ethics (October 1990).

Id.

The more we view her as a container, the more we also separate her interests from those of the fetus, rather than seeing them as a union growing together.

See, e.g., Wagner, “Is In-Vitro Fertilization Appropriate Technology?” (World Health Organization 1989), reported in The Age, May 15, 1989, p. 1.

Id.

For a discussion on the difficult issues raised by selective termination, see Overall, “Selective Termination of Pregnancy and Women's Reproductive Autonomy,” Hastings Center Report 6 (May/June 1990).

ACOG Committee Opinion, supra note 29 at 4–5.

See Kolder , “Court-Ordered Obstetrical Interventions,” 316 New England Journal of Medicine 1192, No. 19 (May 1987); In re A.C., 573 A.2d 1235 (D.C. App. 1990).

See generally, International Union UAW v. Johnson Controls, Inc., 886 F.2d 871 (7th Cir. 1989), cert. granted 110 S.Ct. 1522 (1990) in which the Court will determine in part whether an employer's fetal protection policy in the workplace violates sex discrimination law.

In fact, Anna Johnson filed a complaint last December against the physician who performed the IVF procedure, the IVF program, and the attorney who drafted the surrogacy contract. The claims against the physician, for example, include allegations of medical malpractice, failure to provide informed consent, battery, and negligent and intentional infliction of emotional distress (discussion with Richard Gilbert, attorney for Anna Johnson, January 8, 1991). A few years earlier, Mary Beth Whitehead settled out of court her action against Noel Keane and the Infertility Center of New York for fraud in the Baby M contract and for their failure to properly counsel her on the risks of surrogacy.