Surrogate motherhood is the practice whereby a woman bears a child or children on behalf of other parents. In traditional surrogacy, the
Surrogate is artificially inseminated with the sperm of the intended father. In gestational surrogacy, an embryo created with the intended parents' own egg and sperm (or either of these with a donated gamete) is implanted in the surrogate's womb. In this case the surrogate has no genetic tie to the child she delivers; this option has gained greater acceptance than the other.
The success rates for traditional
surrogacy pregnancy are highÑ85% within six inseminations. The rates for gestational surrogacy pregnancyÑranging from 23% to 50% in the late 1990sÑvary from clinic to clinic. An estimated 500 babies are born each year to surrogate mothers in the United StatesÑabout 8,000 in all since the first successful procedure in 1976. Because surrogacy births are counted as adoptions in some states, an exact count is not possible.
Surrogate motherhood is supervised by fertility centers in jurisdictions that permit it. Most fertility centers require medical and psychological screening of the parties and a signed
contract before any procedures are started. Surrogacy
agreements cover legal, medical, and insurance costs as well as the surrogate's fee (typically $12,500 to $15,000).
The first test of a surrogacy contract was the highly publicized
Baby M case, a 1987 New Jersey dispute in which the surrogate, Mary Beth Whitehead, refused to relinquish a child she had carried, and a
court battle ensued. While the New Jersey Superior Court ruled the contract was legal, its finding was reversed by the state's Supreme Court, which held that the paid contract violated state adoption laws.
The Baby M case fueled a national debate on the ethics of using a surrogate mother. Adoption agencies, the Roman Catholic church, lawyers opposed to biotechnology, and some feminists lobbied for a ban. Opposing them were a number of medical, legal, and civil liberties groups as well as advocates for the infertile.
Although disputes over surrogacy agreements are rare, the Baby M case prompted legislation in 11 states to discourage the practice. These laws typically void surrogacy contracts, preclude a fee for the surrogate, and forbid payment to an intermediary. Other states exclude surrogacy agreements from prohibitions against baby-selling but do not facilitate such agreements by regulating them; still other states regulate paid or unpaid agreements. California does not specifically endorse surrogacy agreements, but in 1993 the state supreme court upheld a contract between Mark and Crespina Calvert and gestational surrogate Anna Johnson, who had sought custody of the Calverts' son, Christopher. The court cited the intent of the contract in deciding who was the
legal mother.
In 1988 the American Bar Association's Section of Family Law issued the Model Surrogacy Act, with recommendations for state lawmaking. Among other provisions, the act calls for court-approved contracts, a fee for the surrogate's services, and screening of parties through a licensed agency.
As of 1996, countries restricting or prohibiting surrogacy included Australia, Britain, France, Germany, Italy, Japan, Poland, and South Africa. An Israeli law prohibiting surrogacy was overturned by Israel's High Court of Justice in December 1995 on the ground that it violated the civil rights of infertile couples. The Knesset (parliament) enacted a new law, effective from Mar. 7, 1996, allowing a woman over 18 to agree to carry a baby for an infertile couple. Under the provisions of the law, the surrogate may not contribute her own ova but may carry the couple's embryo or one conceived with the father's sperm and a donated egg. The surrogate may receive monthly payments for her time, effort, and lost wages, but no other compensation. To be valid, an agreement must have prior approval of a panel of three doctors, a clinical psychologist, a socialpublic official, and a religious leader.
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