The legal and social history of surrogacy can help potential surrogates and intended parents understand the concerns and risks associated with surrogacy. From the 1980s when surrogacy first made news to recent enactments of legislation in Illinois providing a clear framework for gestational surrogacy, surrogacy law has continued making significant developments.
A Primer on Surrogacy in Illinois
For the Chicago Daily Law Bulletin
By H. Joseph Gitlin
July 23, 2004
A surrogate mother is a woman who, before conception, commits to someone else being the legal parent(s) of the child. The surrogate may or may not be the biological mother. In traditional surrogacy the surrogate’s egg is fertilized by the sperm of the intended father through artificial insemination. There is also the possibility of an embryo being implanted in the surrogate, so she is not biologically related to the child, but is only the gestational carrier.
History of Surrogacy
Surrogacy goes back in antiquity. The first recorded surrogacy involved Abraham and his wife Sarai, who was barren. Sarai said to Abraham, “Behold, the Lord hath restrained me from bearing. I pray thee go unto my maid; it may be that I may obtain children by her.” The surrogate was the servant Hagar. Genesis 16:2.
Baby M Surrogacy Case
Surrogacy burst into public attention in 1987 when the media followed every turn of the New Jersey Baby M surrogacy case. It was the O.J. Simpson case of that decade. State legislatures, including Illinois, immediately jumped on the bandwagon and drafted surrogacy legislation, but in Illinois, as in many other states, legislators found the issue to be politically controversial, so the three surrogacy bills never came out of the Illinois Senate Judiciary Committee for a vote.
Assisted Reproductive Technology
Since the Baby M surrogacy case, a new reproductive science developed — Assisted Reproductive Technology (ART). Assisted Reproductive Technology readily lends itself to surrogacy. There is now not only artificial insemination, but there is also the capacity to freeze sperm, freeze ova (eggs) and freeze embryos.
Using ART technology, in which in vitro fertilization (IVF) is the core, most people with infertility problems can have a child related to at least one of the intended parents.
Why the Popularity of Surrogacy?
It is the overarching issue of married couples, single people, and homosexual couples to have children when a child cannot be conceived.
From my experience people who choose to have a child through surrogacy or adoption often delayed having children in order to pursue career goals and, when they attempt to conceive, they found an infertility problem.
Model Surrogacy Act & H. Joseph Giltin: Leading Surrogacy Authority in 1987 Baby M Case
I found my “fifteen minutes in the sun” when the Baby M case became the darling of the media. Several years before Baby M, I founded and chaired the American Bar Association, Family Law Section Surrogacy Committee.
I founded it because I felt surrogacy was going to become a cutting edge family law issue. I wanted the ABA to become aware of the legal issues involved in surrogacy and the best way to do so was to draft a Model Surrogacy Act. This is what the committee did.
The Model Surrogacy Act was completed a short time before Baby M broke. Media people were looking for an authority on surrogacy and my name came up. This led to media quotes and television appearances.
Surrogacy Remains Controversial
Surrogacy remains controversial in Illinois, except for gestational surrogacy in which genetic materials (father’s sperm and mother’s egg) are those of the intended parents. For gestational surrogacy, Illinois recently adopted a statute which has a simplified non-adoption procedure by which the parents can obtain a birth certificate. For all other types of surrogacy, there is no legislation or case law guidance. (See “Illinois Becomes Surrogacy Friendly.”)
Are Surrogacies Happening in Illinois?
Yes, definitely. The legal problem in most surrogacies is that the child comes out of the body of a woman who is not the intended mother. The law, however, presumes (as it has since time immemorial) that the legal mother is the person out of whose body the child came. The legal solution to the problem is to terminate the surrogate mother’s presumed parental rights, and this can only be done by an adoption. An adoption, however, raises still another legal problem.
Concerns of “Baby Buying”
If, as is the usual case, the surrogate is paid a fee for her services for being inseminated, or having the embryo implanted in her, and for delivering the child, when the case comes up for adoption the judge will have a legitimate concern that the mother has been paid a fee, and of course “baby buying” is unlawful.
The Legal Challenge of Surrogacy
The legal challenge, therefore, is to demonstrate to the judge that in surrogacy the intended parents are not buying a child, but only paying for the services of the surrogate. The lawyers task is to distinguish surrogacy from adoption. Of course the main distinction is that in most adoption circumstances the mother did not become deliberately pregnant, so payment of money to her might be an inducement to give up the child.
On the other hand, a surrogate mother deliberately becomes pregnant with the intent of giving up the child, so paying for her services is a controversial payment for services rendered.
Declaratory Judgment Proceeding
I attempt to assure against my clients, the intended parents, being charged with a “baby buying” crime (and for that matter, of being in complicity) by bringing to the court, before the surrogacy contract is signed, a declaratory judgment proceeding in which I ask that the judge find the intended surrogacy contract is not in contravention to laws prohibiting payment or receipt of compensation for the placing of a child for adoption.
Drafting of a Surrogacy Agreement
The first step in representing intended parents in a surrogacy arrangement is the drafting of a surrogacy agreement between the intended parents and the surrogate (and the surrogate’s husband if she is married). The drafting of such a contract requires the lawyer to have knowledge of the science of reproduction and a working knowledge of obstetrics.
Not too long ago I had a lawyer telephone me and ask if, for a fee, I would send him my “form contract for surrogacy” so he could fill it in. I determined he did not have sophistication in reproductive technology or practical obstetrics. The lawyer assumed that if he had a fill in the blanks contract it would be as simple as a residential real estate deal. I told the lawyer that giving him such a contract would be like giving a loaded gun to a child.
What Does the Contract Accomplish?
For a lawyer, building a family unit through the addition of a child is rewarding. The main purpose of the contract is that the surrogate mother agrees to give up the child to the intended parents. Other purposes are to state what the compensation paid to the mother is, to control the mother’s activities during pregnancy, address the right to terminate the pregnancy etc.
Considering the number of surrogacies there have been, the surrogate mother has reneged on custody in very few cases, the most notorious being Baby M, 109 N.J. 396, 537 A.2d 1227 (NJ 1988) and the California case of Johnson v. Calvert. 5 Cal.4th 84, 851 P.2d 19 (1993). Both of these cases were decided in favor of the intended parents, however, it was not on the basis of the contract, but on the basis of what the intentions of the parties were and the best interest of the child.
The contracts were the significant factor in determining intention. Thus, while the contract may not be enforced, the contract is essential because it demonstrates the intent of the parties.