Indiana Law Review


Surrogate Motherhood Legislation:

A Sensible Starting Point

I. Introduction

Fifteen to twenty percent of the married couples in the United States

have infertihty problems.^ Traditionally, those couples with infertility

problems could estabUsh a family only by adopting a child. However,

due to the growing demand and decreasing supply of adoptable babies,

adoption now involves a long waiting period for the adopting parents.^
New reproductive technologies provide many infertile couples with

other options. When the husband of a married couple is infertile, the
wife may be artificially inseminated by sperm from a sperm bank. When
the wife of a married couple is infertile, sperm from the husband may
be used to artificially inseminate a woman who is capable of conceiving
and carrying a child. ^ The latter option is commonly referred to as
surrogate motherhood.

Surrogate motherhood is a technological solution to infertility, but

its legal status remains uncertain. Because it is a practice not contemplated

by existing state and federal laws, surrogate motherhood currently exists

in legal limbo.

The legal issues and conflicts regarding surrogate motherhood have

been identified and debated. There is now an urgent need for state
legislatures to respond to the debate by enacting laws clarifying the

legality of surrogate motherhood. Proposals have been offered in many
legislatures but no proposal has been enacted in any jurisdiction."^

The purpose of this Note is to present the legal issues and conflicts

regarding surrogate motherhood, to discuss the attempts of legislators

to resolve those issues and conflicts, and to propose principled legislation

to legalize and regulate the practice of surrogate motherhood.

II. Legal Issues

The state's ability to regulate or prohibit surrogate motherhood

depends upon the state interests at stake and whether or not the practice

is protected by the federal constitution.

'L.A. Daily J., May 21, 1982, at 2, col. 2. See also Annas, Fathers Anonymous:
Beyond the Best Interest of the Sperm Donor, Child Welfare, March 1981, at 164.

^Parker, Surrogate Motherhood, Psychiatric Screening and Informed Consent, Baby

Selling, and Public Policy, 12 Bull, of Am. Acad, of Psychl«ltry & L. 21 (1984).
^A third possibility is that a viable sperm may fertiUze a viable egg outside of a

woman's body (in vitro fertihzation). The resulting conceptus may then be implanted in

the uterus of a woman who is capable of carrying the child.
"See infra note 60.

879



880 INDIANA LAW REVIEW [Vol. 20:879

A. Constitutional Right To Privacy

The United States Supreme Court has recognized procreative freedom

as a fundamental right that falls within the broader constitutionally

protected right to privacy.^ Proponents of surrogate motherhood argue

that the practice falls within this constitutionally protected area and,

therefore, cannot be prohibited by the state.

The right to privacy was first applied to the marital relationship in

Griswold v. Connecticut.^ In Griswold, the Supreme Court invalidated

a Connecticut statute that forbade the use of contraceptives. In its

opinion, the Court identified various '*zones of privacy*'^ guaranteed by

the Constitution,^ and stated that marriage "deal[t] with a right of

privacy older than the Bill of Rights. . . ."^ Therefore, the state could

not achieve its goals by means that would be destructive to the marriage

relationship. '°

The scope of constitutional protection of procreation was defined

in cases following Griswold. In Eisenstadt v. Baird,^^ the Court expanded

the scope of procreative freedom to include unmarried individuals. At

issue in Eisenstadt was a Massachusetts statute that made distribution
of contraceptives to unmarried individuals a criminal offense. In finding

the Massachusetts statute unconstitutional, the Court stated, "If the right

of privacy means anything, it is the right of the individual, married or

single, to be free from unwarranted governmental intrusion into matters

so fundamentally affecting a person as the decision whether to bear or

beget a child. '"^

Further expansion of the scope of constitutional protection came in

Roe V. Wade,^^ where the Court held that a woman's decision to abort

^See infra notes 6-19.

^381 U.S. 479 (1965).

'Id. at 484.

*Various guarantees create zones of privacy. The right of association contained

in the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers "in any house"
in time of peace without the consent of the owner is another facet of that

privacy. The Fourth Amendment expHcitly affirms the "right of the people to
be secure in their persons, houses, papers and effects, against unreasonable

searches and seizures." The Fifth Amendment in its Self-incrimination Clause
enables the citizen to create a zone of privacy which government may not force
him to surrender to his detriment. The Ninth Amendment provides: "The
enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people."

381 U.S. at 484.

'381 U.S. at 486.

'°M at 485.

"405 U.S. 438 (1972).

'^Id. at 453.

'MIO U.S. 113 (1973).



1987] SURROGATE MOTHERHOOD LEGISLATION 881

a pregnancy was within the right to privacy.'^ Therefore, the right to

privacy encompassed both the decision to become pregnant and the

decision to terminate that pregnancy. However, the Court noted that

the right to personal privacy was not absolute and that the state could

still regulate the right upon showing a "compeUing state interest".'^

When a "compelling state interest" was shown, the standard for state
regulation was the least restrictive means possible, which meant that the

state could not impose regulations broader than necessary to protect its

own "compelling interest". ^^

The state's limited ability to intervene into matters of procreative

freedom was further explained in Carey v. Population Services Inter-

national.^'^ In invalidating a New York statute restricting the sale, dis-
tribution and advertising of contraceptives, the Court stated that the

outer bounds of the right of privacy have not been determined.'^ The

Court explained that an individual's right to make decisions involving
procreation is not protected from all governmental intrusions; rather, it

is protected from unjustified governmental intrusions.'^

The relation of these cases to surrogate motherhood has been ex-

plained by professor John Robertson of the University of Texas at

Austin:

The principle underlying these holdings [referring to the line of

cases from Griswold through Roe v. Wade] includes the right
of a married couple to have children coitally. If so, it is difficult

to see how noncoital, collaborative reproduction by married
persons can be treated differently. If married persons have a

right to have and raise children, it should follow that they have

the right to enlist the support of physicians and others to obtain

reproductive factors (sperm, eggs or uterus) that will enable them

to do so. 2^

Professor Robertson's argument is forceful, but how far does the
right extend? Does it extend to paying the surrogate mother a fee for

her role as a surrogate mother? A circuit court in Michigan addressed
this question in Doe v. Kelley?^ The plaintiffs in Doe v. Kelley were
an infertile couple, John and Mary Doe, and a surrogate mother, Mary

'*Id. at 155.

''Id. (quoting Kramer v. Union Free School District, 395 U.S. 621, 627 (1969)).
'HIO U.S. at 155.

'^431 U.S. 678 (1977).

'^Id. at 684.

''Id. at 687.

'"Billig, High Tech Earth Mothering, 9 District Lawyer 56, 57 (1985).
^'6 Fam. L. Rep. (BNA) 3011 (Cir. Ct. Mich. 1980), aff'd, 106 Mich. App. 169,

307 N.W.2d 438 (1981).



882 INDIANA LA W REVIEW [Vol. 20:879

Roe. The surrogate mother had agreed to an arrangement whereby she

and John Doe would conceive a child through artificial insemination.
Upon birth of the child, Mary Roe would relinquish the child to John
and Mary Doe for adoption. Mary Roe would receive medical expenses
and a payment of five thousand dollars from the Does for her part in

the arrangement.

The plaintiffs alleged that the Michigan adoption statute prohibiting

the payment of fees (other than court approved fees) in connection with

an adoption infringed upon their right to privacy. ^^ The court held that

the Michigan statute did not infringe upon the plaintiffs' right to pri-

vacy. ^^ The court explained that

[t]he right to adopt a child based upon the payment of five

thousand dollars is not a fundamental personal right and rea-

sonable regulations controlling adoption proceedings that prohibit

the exchange of money (other than charges and fees approved
by the court) are not constitutionally infirm. ^"^

Even assuming that the plaintiffs' arrangement was within the right

to privacy, the state still could interfere because it has a compelling

interest in preventing the commercialism of babies. According to the

court, the surrogate was at least partly induced to participate in the

surrogate arrangement by the payment of the five thousand dollar fee,

and such commercialism violated state public policy. ^^ Consequently,

while use of a surrogate mother per se was found to be within the

constitutionally protected right to privacy, the state could prohibit pay-

ment of a fee to the surrogate. The court considered such a restriction

appropriately narrow to protect only the state interest in preventing the

commerciahsm of babies. ^^

B. Fourteenth Amendment Equal Protection

Another constitutional argument raised by proponents of surrogate

motherhood is based upon the equal protection mandated by the Four-
teenth Amendment. The artificial insemination of women by sperm
received from a sperm bank is now widely accepted and twenty-eight
states have laws providing that a sperm donor recipient and her husband

are the legal parents of a child conceived and born from artificial

^^Id. at 3012.

^Ud. at 3013.

^'Id.

''Id. at 3014.

''Id. at 3013-14.



1987] SURROGATE MOTHERHOOD LEGISLATION 883

insemination.^^ These laws were enacted to protect an anonymous donor

to a sperm bank from legal responsibility for the child conceived from

his sperm. 2^ Proponents of surrogate motherhood argue that the absence

of an analogous law allowing a natural father and his wife to be the

legal parents of a child conceived from the artificial insemination of a

surrogate mother (the egg donor) violates the equal protection mandated

by the Fourteenth Amendment. ^^ This Fourteenth Amendment argument
is problematic because the genetic analogy of the sperm-donating anon-

ymous insemination donor to the egg-donating surrogate mother is in-
accurate. The role of the sperm donor through a sperm bank is detached

and anonymous. However, the role of the surrogate mother is intimate.

The surrogate mother carries the child through nine months of gestation.

For those nine months the developing fetus is intimately biologically

connected to the surrogate. Also, the physiological and psychological

^^Ala. Code § 26-17-21 (1986); Alaska Stat. § 25.20.045 (1986); Ark. Stat. Ann.

§ 61-141 (1971); Cal. Civ. Code § 7005 (West 1983); Colo. Rev. Stat. § 19-6-106 (1986);
Conn. Gen. Stat. §§ 45-69f (1981); Fla. Stat. Ann. § 742.11 (West 1986); Ga. Code

Ann. §§ 74-101.1 (Harrison 1981); Idaho Code § 39-5405 (1985); III. Ann. Stat. ch.

40, § 1453 (Smith-Hurd 1981); Kan. Stat. Ann. §§ 23-128 to -130 (1981); La. Civ. Code

Ann. art. 188 (West 1984); Md. Est. & Trusts Code Ann. § l-206(b) (1974); Md. Gen.
Prov. Code § 20-214 (1982); Mich. Comp. Laws Ann. §§ 333.2824, 700.111 (West 1980);
Minn. Stat. Ann. § 257.56 (West 1982); Mont. Code Ann. § 40-6-106 (1985); Nev.
Rev. Stat. § 126.061 (1985); N.J. Stat. Ann. § 9:17-44 (West 1987); N.Y. Dom. Rel.

Law § 73 (Consol 1977); N.C. Gen. Stat. § 49A-1 (1984); Okla. Stat. Ann. tit. 10,
§§ 551-553 (West 1987); Or. Rev. Stat. § 109.239, .243, .247 (1983); Tex. Fam. Code
Ann. § 12.03 (Vernon 1986); Va. Code § 64.1-7.1 (1980); Wash. Rev. Code Ann. §
26.26.050 (1986); Wis. Stat. Ann. § 767.47(9) (West 1981), § 891.40 (1987); Wyo. Stat.

§ 14-2-103 (1986).

^^Section 5 of the Uniform Parentage Act provides:

(a) If, under the supervision of a licensed physician and with the consent

of her husband, a wife is inseminated artificially with semen donated by a man
not her husband, the husband is treated in law as if he were the natural father

of a child thereby conceived. The husband's consent must be in writing and

signed by him and his wife. The physician shall certify their signatures and the

date of the insemination, and file the husband's consent with the [State De-

partment of Health], where it shall be kept confidential and in a sealed file.

However, the physician's failure to do so does not affect the father and child

relationship. All papers and records pertaining to the insemination, whether part

of the permanent record of a court or of a file held by the supervising physician

or elsewhere, are subject to inspection only upon an order of the court for

good cause shown.

(b) The donor of semen provided to a hcensed physician for use in artificial

insemination of a married woman other than the donor's wife is treated in law
as if he were not the natural father of a child thereby conceived.

Unif. Parentage Act § 5, 9A U.L.A. 592-93 (1979). See also Billig, High Tech Earth
Mothering, 9 District Law^yer 56, 58 (1985).

^'Craig V. Boren, 429 U.S. 190, 197 (1976), has settled the standard for review

("[C]lassification by gender must serve important governmental objectives and must be

substantially related to achievement of those objectives.").



884 INDIANA LAW REVIEW [Vol. 20:879

changes that occur in a woman during pregnancy are unique. Therefore,
Fourteenth Amendment support for surrogate motherhood based upon
the anonymous insemination donor statutes is doubtful.

C. Family Integrity

The right to family integrity is protected by both the United States
Constitution and by state laws. On the federal level, the Supreme Court
has interpreted the Fourteenth Amendment to the Constitution as pro-
tecting family integrity.^° Because protection for family integrity is rooted

in the Constitution, the state must have a "compelling interest"^^ to

regulate family matters. The state has a compelling interest in the welfare

of children, 32 and the family law statutes are designed to protect children

and the integrity of the family. For example, Indiana Code § 31-6-1-1

states that "[i]t is the poUcy of this state and the purpose of this article

... to strengthen family life by assisting parents to fulfill their parental

obligations, "33 and Indiana Code § 31-6-6.1-11 provides that in child

custody cases "[t]he court shall determine custody in accord with the

best interests of the child. "^^

3°Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (The Fourteenth Amendment "denotes
. . . the right of the individual ... to marry, establish a home and bring up children.");
Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974) ("[F]reedom of

personal choice in matters of marriage and family life is one of the Uberties protected

by the Due Process Clause of the Fourteenth Amendment."), See also Pierce v. Society
of Sisters, 268 U.S. 510, 534-35 (1925); Prince v. Massachusetts, 321 U.S. 158, 166 (1944);

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); May v. Anderson, 345 U.S. 528, 533
(1953).

^•Roe V. Wade, 410 U.S. 113, 155 (1973).
"7/2 re Joseph, 416 N.E.2d 857, 860 (Ind. Ct. App. 1981).

"IND. Code § 31-6-1-1 (1982).
^''IND. Code § 31-6-6.1-11 (Supp. 1986) provides:
(a) The court shall determine custody in accord with the best interests of the

child. In determining the child's best interests, there shall be no presumption

favoring either parent. The court shall consider all relevant factors, including:

(1) the age and sex of the child;

(2) the wishes of the child's parents;

(3) the wishes of the child;

(4) the interaction and interrelationship of the child with his parents, and

his siblings, and with any other person who may significantly affect the child's
best interest;

(5) the child's adjustments to his home, school, and community; and

(6) the mental and physical health of all individuals involved.

(b) The custodial parent may determine the child's upbringing, which includes
his education, health care, and religious training, unless the court determines

that the best interests of the child require a limitation on his authority.

(c) The court may order the probation department, the county department of
public welfare, or any licensed child-placing agency to supervise the placement

to insure that the custodial or visitation terms of the decree are carried out if:



1987] SURROGATE MOTHERHOOD LEGISLATION 885

Opponents of surrogate motherhood contend that surrogate moth-

erhood psychologically damages children by treating them as commercial

objects. ^^ Critics also contend that surrogate motherhood destroys the

family unit by displacing the child from one of his biological parents. ^^

(1) both parents or the child request supervision; or

(2) the court finds that without supervision the child's physical health and

well-being would be endangered or his emotional development significantly im-

paired,

(d) The court may interview the child in chambers to ascertain his wishes. The
court shall permit counsel to be present at this interview, which must be on

the record.

(e) The court may modify an order determining custody rights whenever mod-
ification would serve the best interests of the child.

(f) If an individual who has been awarded custody of a child under this section
intends to move to a residence (other than a residence specified in the custody
order) that is outside Indiana or one hundred (100) miles or more from the

individual's county of residence, that individual must file a notice of that intent

with the clerk of the court that issued the custody order and send a copy of

the notice to each noncustodial parent (as defined in section 12.1 [31-6-6.1-12.1]

of this chapter).

Ind. Code § 31-3-1-6 (1982) provides:

(a) Except as otherwise provided in this section, a petition to adopt a child

under eighteen [18] years of age may be granted only if written consent to
adoption has been executed by:

(1) each living parent of a child born in wedlock;

(2) the mother of a child born out of wedlock and the father of such a

child whose paternity has been established by a court proceeding;

(3) any person, agency, or county department of public welfare having

lawful custody of the child whose adoption is being sought;

(4) the court having jurisdiction of the custody of the child, if the legal

guardian or custodian of the person of the child is not empowered to consent

to the adoption;

(5) the child to be adopted, if more than fourteen [14] years of age; or

(6) the spouse of the child to be adopted.

A parent under the age of eighteen [18] years may consent to an adoption
without the concurrence of his parent or parents, or the guardian of his person

unless the court, in its discretion, determines that it is in the best interest of

the child to be adopted to require such a concurrence.

(f) A consent to adoption may not be withdrawn after the entry of the decree
of adoption. A consent to adoption may not be withdrawn prior to the entry
of the decree of adoption unless the court finds, after notice and opportunity

to be heard afforded to the petitioner, the person seeking the withdrawal is

acting in the best interest of the person sought to be adopted and the court

orders the withdrawal.

^^Bitner, Womb for Rent: A Call for Pennsylvania Legislation Legalizing and Reg-
ulating Surrogate Parenting Agreements, 90 Dick. L. Rev. 227, 235 (1985).

^*Katz, Surrogate Motherhood and the Baby-Selling Laws, 20 Colum. J.L. & Soc.
Probs. 1, 17 (1986) ("It is the basic working assumption of our society that children

belong with their biological parents whenever possible.").



886 INDIANA LAW REVIEW [Vol. 20:879

Conversely, proponents of surrogate motherhood contend that infertile

couples who are willing to have children by means of a surrogate mother,
despite the potential problems involved, are just as capable of forming

and nurturing a strong family unit as any fertile married couple.
^"^

D. Baby Selling

The greatest legal obstacle to surrogate motherhood is the state's

prohibition of child selling. ^^ A natural mother is prohibited from re-
ceiving any fee in connection with an adoption or termination of her

parental rights. ^^ Some property may be transferred in a supervised
adoption, such as reasonable attorney's fees, medical expenses, and other

court approved fees."^^ Such payments are for the reasonable expenses

that are incurred in connection with the adoption process; it is the

transfer of additional funds to entice a mother to give up her child for

adoption that is prohibited.

The paradigm situation contemplated by the law is where an unwed
mother, faced with an unwanted pregnancy, is approached by *'baby

brokers" who offer her a fee to induce her to give up her child for
adoption. Offering a fee to a mother in this situation can be an un-

'^Note, The Surrogate Mother Contract in Indiana, 15 Ind. L. Rev. 807, 815 (1982).

''See, e.g., Ind. Code § 35-46-1-4 (1982) which provides:

(b) Except for property transferred or received:

(1) under a court order made in connection with a proceeding under I.C.
31-1-11.5 or I.C. 31-6-5; or

(2) under I.C. 35-46-l-9(b); a person who transfers or receives any property
in consideration for the termination of the care, custody, or control of a person's

dependent child commits child selling, a Class D felony.
(Ind. Code § 31-1-11.5-1 to -26 (Supp. 1986) governs dissolution of marriage. Ind. Code

§ 31-6-5-1 to -6 (Supp. 1986) governs termination of the parent-child relationship).

'^See, e.g., Ind. Code § 35-46-1-9 (1982) which provides:
(a) Except as provided in subsection (b), a person who, with respect to an

adoption, transfers or receives any property in connection with the waiver of

parental rights, the termination of parental rights, the consent to adoption, or

the petition for adoption commits profiting from an adoption, a Class D felony.
(b) This section does not apply to the transfer or receipt of:

(1) reasonable attorney's fees;

(2) hospital and medical expenses concerning childbirth and pregnancy

incurred by the adopted person's natural mother;

(3) reasonable charges and fees levied by a child placing agency licensed

under I.C. 12-3-2 or by a county department of public welfare; or

(4) other charges and fees approved by the court supervising the adoption.

"^See, e.g., Ind. Code § 35-46-l-9(b) (1982). Ind. Code § 31-6-6.1-17 (1982) provides:
The court may order the father to pay reasonable and necessary expenses of
the mother's pregnancy and the childbirth, including the cost of prenatal care,

delivery, hospitalization, and postnatal care.



1987] SURROGATE MOTHERHOOD LEGISLATION 887

conscionable inducement to give up a child, and is therefore prohibited/'

The primary argument made by opponents of surrogate motherhood is
that offering a fee to women to conceive, carry and bear children
encourages those women to have children they do not want/^ Proponents
of surrogate motherhood distinguish the surrogate motherhood situation

by responding that the surrogate mother is really being paid a fee for

her services in assisting the infertile couple in having a child and not

for giving up her child for adoption/^

Recently, the Supreme Court of Kentucky faced the child selling

issue. '^ In a challenge by the attorney general of Kentucky to surrogate

motherhood contracts, the court held that surrogate motherhood contracts

did not violate Kentucky laws governing child selling /^ Central to the

court's holding was its finding that the surrogate's decision to bear a

child was made prior to conception. The court stated:

The essential considerations for the surrogate mother when she
agrees to the surrogate parenting procedures are not avoiding

the consequences of an unwanted pregnancy for fear of the

financial burden of child rearing. On the contrary, the essential
consideration is to assist a person or couple who desperately
want a child but are unable to conceive one in the customary

manner to achieve a biologically related offspring. "^^

While the argument is well made that the surrogate mother is being
paid a fee for her services rather than being paid to give up her child

for adoption, the fee does necessarily inject some commercialism into

the child bearing process. ^^

E. Consent to Adoption

The state's policy governing parental consent to an adoption is
connected to the state's interest in preventing baby selling and protecting

family integrity. For example, in Indiana, a mother cannot consent to

"'Surrogate Parenting v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209, 211
(Ky. 1986); Doe v. Kelley, 6 Fam. L. Rep. (BNA) 3011, 3013 (Cir. Ct. Mich. 1980);
Bitner, supra note 35, at 235; Note, supra note 37, at 814.

"^6 Fam. L. Rep. (BNA) at 3014; Note, supra note 37, at 812.

"^Bitner, supra note 35, at 235.

'"Surrogate Parenting v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209 (Ky.

1986).

^'Id. at 211.

"^Id. at 211-12.

"^Katz, supra note 36.



888 INDIANA LA W REVIEW [Vol. 20:879

an adoption until the child she is carrying is born."*^ The statute is

potentially fatal to the surrogate motherhood agreement. The surrogate

may, prior to conception, agree to consent to the adoption of her child

but may revoke that agreement anytime during the pregnancy because
the statute forbids her from validly consenting to the adoption of her

child prior to the child's birth/^ The purpose of the law is to prevent

an expectant mother from making a hasty and later regretful decision

to give up her child for adoption. However, surrogate motherhood falls

outside of this purpose because the surrogate mother decides before

becoming pregnant that she will assist an infertile couple to have a child

of their own.^^

F. Legitimacy and Paternity

Finally, the state also has an interest in establishing paternity and

the legitimacy of children. The legitimacy issue comes into play when

a child is born to an unmarried surrogate mother. Such a child would

be illegitimate under present law^* and would suffer the stigma of being

illegitimate. The child's inheritance rights would also be affected. ^^ If

^«Ind. Code § 31-3-1-6 (1982) provides:
(b) The consent to adoption may be executed at any time after the birth

of the child either in the presence of the court, in the presence of a notary

public or other person authorized to take acknowledgements, or in the presence

of a duly authorized agent of the state or county department of public welfare

or licensed child-placing agency.

''Id.

'""See Surrogate Parenting, 704 S.W.2d at 211-12.

''See 10 C.J.S. Bastards § 1 (1938).

"is.g., Ind. Code § 29-1-2-7 (1982) provides:

(a) For the purpose of inheritance to, through and from an illegitimate

child, such child shall be treated the same as if he were the legitimate child of

his mother, so that he and his issue shall inherit from his mother and from

his maternal kindred, both descendants and collaterals, in all degrees, and they

may inherit from him. Such child shall also be treated the same as if he were
a legitimate child of his mother for the purpose of determining homestead rights,

and the making of family allowances.

(b) For the purpose of inheritance to, through and from an illegitimate

child, such child shall be treated the same as if he were the legitimate child of

his father, if but only if, (1) the paternity of such child has been estabUshed

by law, during the father's lifetime; or (2) if the putative father marries the

mother of the child and acknowledges the child to be his own.

The testimony of the mother may be received in evidence to establish such
paternity and acknowledgment but no judgment shall be made upon the evidence
of the mother alone. The evidence of the mother must be supported by cor-

roborative evidence or circumstances.

When such paternity is established as provided herein such child shall be
treated the same as if he were the legitimate child of his father, so that he and

his issue shall inherit from his father and from his paternal kindred, both



1987] SURROGATE MOTHERHOOD LEGISLATION 889

the child is born to a married surrogate, then present law would presume

that the surrogate's husband is the father."

In the case of the unmarried surrogate mother, if all goes as planned

in the surrogate motherhood arrangement, then subsequent adoption of

the child by the natural father and his wife would solve the legitimacy

problem. ^"^ It is when the unmarried surrogate wants to keep the child
that the legitimacy problem arises. If the unmarried surrogate is successful

in keeping the child, then the child would be illegitimate.^^

descendants and collateral, in all degrees, and they may inherit from him. Such
child shall also be treated the same as if he were a legitimate child of his father

for the purpose of determining homestead rights, and the making of family

allowances.

''E.g., IND. Code § 31-6-6.1-9 (Supp. 1986) provides:
(a) A man is presumed to be a child's biological father if:

(1) he and the child's biological mother are or have been married to each

other and the child is born during the marriage or within three hundred (300)

days after the marriage is terminated by death, annulment, or dissolution;

(2) he and the child's biological mother attempted to marry each other by

a marriage solemnized in apparent compliance with the law, even though the

marriage is void under I.C. 31-7-6-2, I.C. 31-7-6-3, I.C. 31-7-6-4, or I.C. 31-

7-6-6, or is voidable under I.C. 31-7-7, and the child is born during the attempted

marriage or within three hundred (300) days after the attempted marriage is

terminated by death, annulment, or dissolution; or

(3) after the child's birth, he and the child's biological mother marry, or

attempt to marry, each other by a marriage solemnized in apparent compliance

with the law, even though the marriage is void under I.C. 31-7-6-2, I.C. 31-7-

6-3, I.C. 31-7-6-4, or I.C. 31-7-6-6, or is voidable under I.C. 31-7-7, and he

acknowledged his paternity in writing filed with the registrar of vital statistics

of the Indiana State Board of Health or with a local board of health.

(b) If there is no presumed biological father under subsection (a), a man is
presumed to be the child's biological father if, with the consent of the child's

mother:

(1) he receives the child into his home and openly holds him out as his
biological child; or

(2) he acknowledges his paternity in writing with the registrar of vital

statistics of the Indiana State Board of Health or with a local board of health.

The presumption of paternity may be rebutted by "direct, clear, and convincing evidence."
R.D.S. V. S.L.S., 402 N.E.2d 30, 31 (Ind. Ct. App. 1980).

''E.g., Ind. Code § 29-1-2-8 (1982) provides:
For all purposes of intestate succession, including succession by, through or

from a person, both hneal and collateral, an adopted child shall be treated as

a natural child of his adopting parents; and he shall cease to be treated as a

child of his natural parents and of any previous adopting parents: Provided,

that if a natural parent of a legitimate or illegitimate child shall have married

the adopting parent, the adopted child shall inherit from his natural parent as

though he had not been adopted, and from his adoptive parent as though he

were the natural child; and Provided further. That if a person who is related

to a child within the sixth degree adopts such child, such child shall upon the

occasion of each death in his family have the right of inheritance through his

natural parents or adopting parents, whichever is greater in value in each case.

''See 10 C.J.S. Bastards § 1 (1938).



890 INDIANA LA W REVIEW [Vol. 20:879

In the case of the married surrogate, current law provides a solution

to the paternity problem. Paternity of the natural father could be ac-

knowledged in the surrogate motherhood contract and adjudicated before

birth of the child. ^^

III. Legislative Proposals

Recently, In re Baby M" raised national awareness of the problems
surrounding surrogate motherhood. Baby M involved a surrogate moth-
erhood contract between William Stein, the natural father of *'Baby

M", and Mary Beth Whitehead, the surrogate mother. The contract
obHgated the natural father to pay the surrogate a fee of 10,000 dollars

plus all medical expenses. In exchange for these payments, the surrogate

was obligated to relinquish the newborn child to the natural father and

to terminate her parental rights. However, after "Baby M" was born,
the surrogate mother refused to relinquish the child and terminate her

parental rights. The natural father then sued the surrogate to enforce

the surrogate motherhood contract. The case was decided by Judge

'"•E.g., Ind. Code § 31-6-6.1-2 (Supp. 1986) provides:
(a) A paternity action may be filed by the following persons:

(1) The mother, or expectant mother.

(2) A man alleging that he is the child's biological father, or that he is
the expectant father of an unborn child.

(3) The mother and a man alleging that he is her child's biological father,
or by the expectant mother and a man alleging that he is the biological father
of her unborn child, filing jointly.

(4) A child.
A person under the age of eighteen [18] may file a petition if he is competent
except for his age. A person who is otherwise incompetent may file a petition
through his guardian, guardian ad litem, or next friend.

(b) The state department of public welfare or a county department of public

welfare may file a paternity action if:

(1) the mother;

(2) the person with whom the child resides; or
(3) the director of the county department of pubhc welfare; has executed

an assignment of support rights under Title IV-D of the federal Social Security

Act (42 U.S.C. 651 et. seq.).

(c) In every case, the child, the child's mother, and any person alleged to be

the father are necessary parties to the action.

In Syrkowski v. Appleyard, 8 Fam. L. Rep. (BNA) 2139 (Cir. Ct. Mich. 1981), the
plaintiff Syrkowski filed for an order of filiation under the Michigan Paternity Act alleging

that pursuant to a surrogate motherhood arrangement he was the father of the defendant

Appleyard's unborn child. The circuit court held that it had no jurisdiction in the case

because the subject matter was beyond the scope of the Michigan Paternity Act. Id. The

Michigan Court of Appeals affirmed the decision, 122 Mich. App. 506, 333 N.W.2d 90,
93-94 (Mich, App. 1983); however, the Michigan Supreme Court reversed and remanded,

holding that the plaintiff's request was within the scope of the Paternity Act. 420 Mich.

367, 362 N.W.2d 211, 214 (1985).
"13 Fam. L. Rep. (BNA) 2001 (Super. Ct. N.J. 1987).



1987] SURROGATE MOTHERHOOD LEGISLATION 891

Sorkow of the New Jersey Superior Court in Bergen County. In Judge
Sorkow's opinion, surrogate motherhood contracts were not within the

current adoption statutes and, therefore, could be specifically enforced. ^^

However, the child custody decision was not based upon the surrogate
motherhood contract but upon the best interests of the child, and in
this case the best interests of the child were served by granting custody

to the natural father. ^^

The Baby M case highlights the urgent need for a legislative solution
to the problems posed by surrogate motherhood. Legislators in many
jurisdictions have offered proposals to legalize and regulate the practice

of surrogate motherhood, ^° and although the proposed regulations have

been aimed at protecting the state interests at stake, none of the proposals

have been enacted. ^^ The proposals vary in complexity and requirements.

The following is a summary of the important features of many of these
proposals.

A. Who May Participate

Alaska H.B. Nos. 497 and 498 are, together, the simplest and

broadest proposals regulating surrogate motherhood.^^ The proposals

^^Id. at 2018. Conversely, in a recent adoption case in Indiana, Miroff v. Surrogate

Mother, a Marion County Superior Court judge ruled that surrogate mother contracts

were within the Indiana Adoption Statutes and that the contracts violated those statutes

by providing for payments to the surrogate in excess of the allowable medical expenses

and attorneys fees. 13 Fam. L. Rep. (BNA) 1260 (Super. Ct. Ind. 1987). The judge also
ruled that surrogate motherhood contracts violated "the public policy prohibiting baby-

selling." Id.

'm Fam. L. Rep. (BNA) at 2026.
^H.B. 497, Alaska (1981); H.B. 498, Alaska (1981); Assembly Bill 3771, Cal. (April

6, 1982; amended May 18, 1982; amended June 17, 1982; amended August 2, 1982);
Comm. B. 5316, Conn. (1983); H.B. 1009, Haw. (1983); S.B. 361, Kan. (1983); S.B. 485,
Kan. (1984); H.B. 1552, Md. (1985); H.B. 1595, Md. (1984); H.B. 4555, Mich. (1985);
H.F. 534, Minn. (1983); H.B. 2693, Or. (1983); H.B. 3491, S.C. (1982).

Ala. H.B. 593 (1982) would make surrogate motherhood a class A misdemeanor.
Freed and Foster, Family Law in the Fifty States: An Overview, 16 Fam. L. Q. 289, 299
(1983).

Ky. H.B. 668 (1986) would amend the Kentucky statute on child selling, Ky. Rev.

Stat. Ann. § 199.590 (Michie 1986), to include the following subsection:

(3) No person, agency, institution, or intermediary shall be a party to a
contract or agreement which would compensate a woman for her artificial
insemination and subsequent termination of parental rights to a child born as

a result of that artificial insemination. No person, agency, institution or inter-
mediary shall receive compensation for the facihtation of contracts or agreements

as proscribed by this subsection. Contracts or agreements entered into in violation

of this subsection are void.

The Kentucky proposal did not reach the floor of the General Assembly.

^'"Currently, legislatures in at least 13 states (Cahfornia, Connecticut, Delaware,

Iowa, Maine, Massachusetts, Missouri, Nebraska, New Jersey, New York, Oregon, Penn-
sylvania, and Rhode Island) and the District of Columbia have bills pending that relate

to surrogate parenthood." 13 Fam. L. Rep. (BNA) at 1260.

"H.B. 497, Alaska (1981); H.B. 498, Alaska (1981).



892 INDIANA LAW REVIEW [Vol. 20:879

simply permit the enforceability of surrogate motherhood contracts with-

out further elaboration." Seven states' proposals require the natural

father (artificial insemination donor) to be married,^ and two of those

proposals require that the natural father and his wife be an infertile

couple. ^^ Four states' legislative proposals allow a single natural father

to participate in a surrogate motherhood arrangement.^^

Some proposals do not specify an age requirement for the partic-
ipants.^^ When specified, the age requirements for a surrogate mother^*
and the natural father^^ are eighteen years of age or older. One proposal
does require the surrogate to be at least twenty-one years old.^^

B. Physical and Psychological Examination;

Investigation of the Home

Nearly every proposal requires that the surrogate mother and natural

father submit to physical examination and genetic screening.^' These

examinations are required to evaluate the capacity of the natural father

and the surrogate to produce a normal, healthy child, free of genetic

defects. ^^ The surrogate is also required to undergo psychological eval-

^Assembly Bill 3771 §§ 7501, 7502(a), Cal. (amended Aug. 2, 1982); S.B. 361 §§

1, 6(a)(1), Kan. (1983); S.B. 485 § 1, Kan. (1984); H.B. 1552 § 5-209(1), Md. (1985);
H.B. 1595 § 5-209(A), Md. (1984); H.B. 4555 § 2(b), Mich. (1985); H.B. 3491 §§ 20-7-

3640(B)(5), (B)(7), 29-7-3680(C), S.C. (1982).

"Assembly Bill 3771 §§ 7501, 7502(a), Cal. (amended Aug. 2, 1982); H.B. 4555 §
4(l)(e), Mich. (1985).

^Comm. B. 5316 § 8(a), Conn. (1983); H.B. 1009 § 9(a)(13), (19), Haw. (1983);
H.F. 534 § 4, Minn. (1983); H.B. 2693 § 5(3), Or. (1983).

^^H.B. 497, Alaska (1981); H.B. 498, Alaska (1981); H.B. 4555, Mich. (1985); H.F.

534, Minn. (1983).

^«Assembly Bill 3771 § 7505(b)(6), Cal. (amended Aug. 2, 1982); Comm. B. 5316
§ 1(3), Conn. (1983); H.B. 1009 § 1(8), Haw. (1983); S.B. 485 § 5(a)(3), Kan. (1984);
H.B. 1552 § 5-209(2), Md. (1985); H.B. 1595 § 5-209(B), Md. (1984); H.B. 2693 § 5(2),
Or. (1983); H.B. 3491 § 20-7-3620(F), S.C. (1982). California Assembly Bill 3771 §
7505(d)(7) (amended May 18, 1982) required the surrogate to be at least twenty-one years
of age, but the proposal was later amended on Aug. 2, 1982 requiring the surrogate to

be at least eighteen years of age.

*^Comm. B. 6316 § 1(2), Conn. (1983); H.B. 1009 § 1(5), Haw. (1983); H.B. 1552

§ 5-209(1), Md. (1985); H.B. 1595 § 5-209(A), Md. (1984); H.B. 2693 § 5(1), Or. (1983);
H.B. 3491 § 20-7-3620(E), S.C. (1982). The South Carolina proposal also requires the

natural father's wife to be at least eighteen years of age. H.B. 3491 § 20-7-3620(H), S.C.

(1982).

™S.B. 361 § 5(a)(6), Kan. (1983).

^'Assembly Bill 3771 § 7506(b), Cal. (amended Aug. 2, 1982); Comm. B. 5316 §
3(10), (13), Conn. (1983); H.B. 1009 § 9(10), (14), Haw. (1983); S.B. 361 § 4(a)(3) (required

of the surrogate only), Kan. (1983); S.B. 485 § 4(a)(1) (required of the surrogate only),

Kan. (1984); H.B. 1552 § 5-216(6), (8), Md. (1985); H.B. 1595 § 5-216(6), (8), Md. (1984);
H.F. 534 § 10(l)(j), (2)(c), Minn. (1983); H.B. 2693 § 7(1), Or. (1983).

''Id.



1987] SURROGATE MOTHERHOOD LEGISLATION 893

uation to determine whether or not she has any mental disabihty that

would prohibit her from successfully abiding by the terms of the surrogate

motherhood contract. ^^

Michigan House Bill No. 4555 mandates counseling of the natural

father and his wife by a registered marriage counselor, a Hcensed psy-

chologist, a psychiatrist, or a qualified employee of a hcensed child

placement agency. The counselor must sign a statement certifying that

he has explained "the consequences and responsibihties of surrogate

parenthood "^"^ to the natural father and his wife and in the counselor's

professional judgment the natural father and his wife understand these

consequences and are prepared to undertake the responsibility. ^^ With

respect to the prospective surrogate, the Michigan proposal requires a

qualified counselor (a licensed psychologist, physician, or qualified em-

ployee of a licensed child placement agency) to sign a statement attesting

that the counselor has discussed the "potential psychological consequences

of her consent"^^ to termination of parental rights and responsibilities

and that the surrogate mother is capable of such consent. ^^ Also, in the

surrogate motherhood agreement, the surrogate must agree to submit to

reasonable medical, psychiatric, or psychological exams or genetic screen-

ing requested by the natural father with the test results released to him.^^

Under Maryland House Bill 1595 a natural father may reasonably
request a surrogate to undergo pre-insemination psychiatric or psycho-

logical evaluation and may then require the surrogate to undergo psy-
chological counseling prior to and after the birth of the child if

recommended as a result of the psychiatric or psychological evaluation. ^^

Hawaii House Bill 1009 and Connecticut Committee Bill 5316 regulate

the role of the inseminating physician. ^^ The physician may not inseminate
a surrogate mother unless he is satisfied that the natural father and the

surrogate are mentally and physically suitable.^'

In California Assembly Bill 3771 it is unclear whether the parties

may choose to proceed with the surrogate motherhood arrangement if
a physical, genetic, or psychological defect or problem is revealed by

"Assembly Bill 3771 § 7506(b), Cal. (amended Aug. 2, 1982); Comm. B. 5316 §
3(5), Conn. (1983); H.B. 1009 § 9(a)(5), Haw. (1983); S.B. 361 § 4(a)(2), Kan. (1983);
S.B. 485 § 4(a)(3), Kan. (1984); H.F. 534 § 10(l)(e), Minn. (1983).

^"H.B. 4555 § 4(l)(c), Mich. (1985).

''Id.

''Id. § 4(l)(f).

''Id.

"Id. § 7(l)(a).

^'H.B. 1595 § 5-216(7)(I), Md. (1984); H.B. 1552 § 5-216(7)(I), Md. (1985) (This

provision is analogous to Maryland H.B. 1595 § 5-216(7)(I), but the request may be made
by the natural father or his spouse.).

«°Comm. B. 5316 § 9, Conn. (1983); H.B. 1009 § 10, Haw. (1983).

''Id.



894 INDIANA LA W REVIEW [Vol. 20:879

the required evaluation. ^^ Five of the proposals, however, specifically

leave the decision to proceed with the surrogate motherhood arrangement

up to the parties themselves. ^^ On the other hand, the Oregon proposal
explicitly forbids insemination of a potential surrogate mother if the

medical examinations reveal that a genetic defect or disease could be

transmitted to the child, ^'* and the Connecticut and Hawaii proposals

forbid insemination of the surrogate unless the *' physician is profes-

sionally satisfied with the mental and physical suitability of the surrogate

and the natural father. "^^

As a precondition to judicial approval of a surrogate motherhood
contract, several proposals require an investigation of the home of the
natural father and his wife by a social welfare agency to determine the

suitability of the home for a child. ^^ The purpose of the investigation
is to determine the capacity of the natural father and his wife to love,

care and provide for the child born to the surrogate. *'' The probate

judge reviews the agency's report, and if the report recommends that

adoption of the child born to the surrogate be permitted, then the judge

has ten days to certify the home of the natural father and his wife as
suitable for the child. If the report recommends that adoption of the

child born to the surrogate not be granted, then the judge must conduct

a hearing to review the report and receive any additional evidence

concerning suitability of the home. Based upon this hearing, the judge

then certifies the home of the natural father and his wife as either
suitable or unsuitable for adoption of the child born to the surrogate. ^^

C. The Contract

Most legislative proposals require the parties to a surrogate moth-

erhood contract to be represented by independent legal counsel. The

requirement removes the potential for conflicts of interest that the at-

torney could encounter by representing both sides to the contract. ^^ These

«2Assembly Bill 3771 § 7506(b), Cal. (amended Aug. 2, 1982).

"S.B. 361 § 4(b), Kan. (1983); S.B. 485 § 4(b), Kan. (1984); H.B. 1552 § 5-216(6),

(8), Md. (1985); H.B. 1595 § 5-216(6), (8), Md. (1984); H.B. 4555 § 5(l)(a), Mich. (1985).
«^H.B. 2693 § 7, Or. (1983).

«^Comm. B. 5316 § 9, Conn. (1983); H.B. 1009 § 10, Haw. (1983).
»^Assembly Bill 3771 § 7505(c), Cal. (amended Aug. 2, 1982); H.F. 534 § 3, Minn.

(1983); Comm. B. 5316 § 7, Conn. (1983); H.B. 1009 § 3, Haw. (1983); S.B. 485 § 6,
Kan. (1984).

«^H.F. 534 § 3, Minn. (1983); Comm. B., 5316 § 7, Conn. (1983); H.B. 1009 § 3,
Haw. (1983); S.B. 485 § 6, Kan. (1984).

««H.F. 534 § 3(3), Minn. (1983); Comm. B. 5316 § 7(c), Conn. (1983); H.B. 1009
§ 3(c), Haw. (1983).

«^Assembly Bill 3771 § 7504, Cal. (amended Aug. 2, 1982); Comm. B. 5316 § 5,
Conn. (1983); H.B. 1009 § 8(b), Haw. (1983); H.B. 1552 § 5-215, Md. (1985); H.B. 1595

§ 5-215, Md. (1984); H.B. 4555 § 10, Mich. (1985); H.F. 534 § 9(2), Minn. (1983).



1987] SURROGATE MOTHERHOOD LEGISLATION 895

proposals also require the contract to establish the expenses associated

with the surrogate's pregnancy that will be paid by the natural father

and his wife and to specify the fee that will be paid to the surrogate

when she completes contract performance.^° The surrogate agrees to
terminate her parental rights in the child that she bears, ^' and the natural

father^^ and his wife^^ agree to accept the child born to the surrogate,

regardless of the child's condition.

Five legislative proposals require the contract to contain certain

medical provisions. ^'^ Three of the proposals require the surrogate to

agree to once a month prenatal exams for the first seven months of
her pregnancy and twice a month prenatal exams for the last two months
of her pregnancy. ^^ The surrogate also agrees to follow any instructions

from her physician. ^^

Three of the legislative proposals contain a potentially unconstitu-

tional provision. Minnesota H.F. 534 requires the surrogate to contrac-

tually waive her constitutional right to an abortion unless it is necessary

to save the surrogate's hfe.^^ Hawaii House Bill 1009 and Connecticut

Committee Bill 5316 contain similar provisions, but the standard for

permitting the abortion is lower because the abortion need only be

necessary for the physical health of the surrogate. ^^ Such a contractual

provision restricting a woman's right to abort a pregnancy probably

^'Assembly Bill 3771 § 7506(c)-(0, Cal. (amended Aug. 2, 1982); Comm. B. 5316
§ 3(11H12), Conn. (1983); H.B. 1009 § 9(a)(12)-(13), Haw. (1983); H.B. 1552 § 5-216(11),
Md. (1985); H.B. 1595 § 5-216(11), Md. (1984); H.B. 4555 § 7(3), Mich. (1985); H.F.
534 § 10(2)(a)-(b), Minn. (1983).

^'Assembly Bill 3771 § 7506(a), Cal. (amended Aug. 2, 1982); Comm. B. 5316 §
3(3), Conn. (1983); H.B. 1009 § 4(c), Haw. (1983); H.B. 1552 § 5-212, Md. (1985); H.B.
1595 § 5-212, Md. (1984); H.B. 4555 §§ 4(l)(d),6(l), Mich. (1985); H.F. 534 § 6, Minn.

(1983); H.B. 2693 § 6, Or. (1983).

'^Comm. B. 5316 § 3(16), Conn. (1983); H.B. 1009 § 9(a)(18), Haw. (1983); H.F.

534 § 10(3)(b), Minn. (1983).

''Assembly Bill 3771 § 7506(h), Cal. (amended Aug. 2, 1982); H.B. 1552 § 5-21 1(B),

Md. (1985); H.B. 1595 § 5-21 1(A), Md. (1984); H.B. 4555 § 4(1), Mich. (1985); H.B.
2693 § 6(3), Or. (1983).

'^Comm. B. 5316 § 3(7)-(8), Conn. (1983); H.B. 1009 § 9(a)(7)-(8), Haw. (1983);
H.B. 1552 § 5-216(5)-(7), Md. (1985); H.B. 1595 § 5-216(5)-(7), Md. (1984); H.F. 534 §
10(l)(g)-(h), Minn. (1983).

''Comm. B. 5316 § 3(8), Conn. (1983); H.B. 1009 § 9(a)(8), Haw. (1983); H.F. 534

§ 10(l)(h), Minn. (1983). See also H.B. 1552 § 5-216(7)(I)(3), Md. (1985), and H.B. 1595

§ 5-216(7)(I)(3), Md. (1984) (requiring the surrogate mother to submit to prenatal medical
care upon the natural father's reasonable request).

'^Comm. B. 5316 § 3(7), Conn. (1983); H.B. 1009 § 9(a)(7), Haw. (1983); H.F. 534

§ 10(l)(g), Minn. (1983); H.B. 1552 § 5-216(5), Md. (1985); H.B. 1595 § 5-216(5), Md.

(1984).

'^H.F. 534 § 10(l)(i), Minn. (1983).

'«Comm. B. 5316 § 3(9), Conn. (1983); H.B. 1009 § 9(a)(9), Haw. (1983).



896 INDIANA LAW REVIEW [Vol. 20:879

violates Roe v. Wade.^^ It has been argued that a woman's constitutional
right to an abortion is inahenable and, therefore, cannot be restricted

by contract.'^

Four of the bills provide a mechanism for early termination of the

contract. Connecticut Committee Bill 5316, Hawaii House Bill 1009, and
Minnesota H.F. 534 allow the natural father and his wife to terminate

the contract upon written notice to the surrogate if the surrogate has
not become pregnant within a reasonable time.^°' Kansas Senate Bill 485

additionally permits the surrogate to terminate the contract if she has

not become pregnant within a reasonable time.^^^

Finally, most of the proposed bills require the natural father, his

wife, the surrogate, and her husband, if she is married, to sign the

contract. '^^

> D. Technical Requirements

Some of the proposals require court approval of the surrogate moth-
erhood contract prior to artificial insemination of the surrogate.'^ The
Michigan bill requires signed statements by the medical professionals

involved to be filed in probate court. ^^^ Many of the bills also require
the natural father and his wife to establish an escrow account for all

expenses and fees to be paid to the surrogate.'^ Once all of the statutory
requirements have been met, the court approves the surrogate motherhood

arrangement.'^^

Some bills also require paternity testing following the birth of the
child. '^^ The natural father and the husband of the surrogate, if she is

married, are required to undergo paternity testing to establish that the

''Note, Rumpelstiltskin Revisited: The Inalienable Rights of Surrogate Mothers, 99

Harv. L. Rev. 1936 (1986).

'°'Comm. B. 5316 § 3(15), Conn. (1983); H.B. 1009 § 9(a)(17), Haw. (1983); H.F.

534 § 10(3)(a), Minn. (1983).

'"^S.B. 485 § 9(b)(5), Kan. (1984).

'"^Comm. B. 5316 §§ 5, 6(b)(3), 8(b)(3), Conn. (1983); H.B. 1009 § 8, Haw. (1983);
S.B. 361 § 8(a), Kan. (1983); S.B. 485 § 9(a), Kan. (1984); H.B. 1552 § 5-216(1), Md.

(1985); H.B. 1595 § 5-216(1), Md. (1984); H.F. 534 § 9, Minn. (1983); H.B. 2693 § 6,
Or. (1983).

"^Assembly Bill 3771 § 7505(c), Cal. (amended Aug. 2, 1982); Comm. B. 5316 § 7,
Conn. (1983); H.B. 1009 § 3, Haw. (1983); H.F. 534 § 3, Minn. (1983).

'°^H.B. 4555 §§ 4(l)(c), (e), (f), 9, Mich. (1985).

"^Assembly Bill 3771 § 7506(f), Cal. (amended Aug. 2, 1982); H.B. 1009 § 9(a)(12),

Haw. (1983); Comm. B. 5316 § 3(11), Conn. (1983); H.B. 1552 § 5-216(11), Md. (1985);
H.B. 1595 § 5-216(11), Md. (1984); H.F. 534 § 10(2), Minn. (1983).

•"^Assembly Bill 3771 § 7505(c), Cal. (amended Aug. 2, 1982); Comm. B. 5316 § 7,
Conn. (1983); H.B. 1009 § 3, Haw. (1983); H.F. 534 § 3, Minn. (1983).

'°«Comm. B. 5316 § 13, Conn. (1983); H.B. 1595 § 5-216(10), Md. (1984); H.B.

1552 § 5-216(10), Md. (1985).



1987] SURROGATE MOTHERHOOD LEGISLATION 897

natural father is a potential father of the child born to the surrogate. '^^

E. Responsibilities and Risks

Some of the proposed bills explicitly lay out the responsibilities of
all parties to the surrogate motherhood contract and the risks that each

party assumes in agreeing to the surrogate motherhood arrangement.

For instance, Maryland House Bill 1552 makes it clear that during the

period from conception to birth, parental rights and responsibilities for

the child lie with the natural father and the surrogate; then starting at

birth, parental rights and responsibilities for the child belong to the

natural father and his wife.^'° Under Connecticut Committee Bill 5316,

Minnesota H.F. 534, and Hawaii House Bill 1009, when the surrogate's

sixth month of pregnancy is complete, the court issues an interim order
giving child custody to the natural father and his wife.''' The natural

father and his wife have
*

'exclusive authority to consent to all medical,

surgical, psychological, educational and related services for the child. ""^

This interim order becomes effective upon birth of the child. "^ The

surrogate also agrees that she will not attempt to form a parent-child

relationship with the child. ""* In addition, these three proposals state

that the surrogate assumes the risk of potential complications and death

from the pregnancy."^

Four bills also have rules that govern in the event that one or more

parties to the contract dies. Connecticut Committee Bill 5316, Hawaii

House Bill 1009, and Oregon House Bill 2693 establish that if one

member of the contracting infertile couple dies before the child is born,
then the other member assumes full responsibility for the child born to
the surrogate."^ The Connecticut and Hawaii bills establish that if both

members of the infertile couple, die before the child is born, then the

surrogate has the option of either keeping the child or giving it up for

adoption."^ Michigan House Bill 4555 addresses the event of death to

"^M The Connecticut bill does not require the surrogate's husband to submit to
paternity testing.

"°H.B. 1552 § 5-211, Md. (1985).
'"Comm. B. 5316 § 12, Conn. (1983); H.B. 1009 § 6, Haw. (1983); H.F. 534 § 7,

Minn. (1983).

'''Id.

"^Comm. B. 5316 § 3(2), Conn. (1983); H.B. 1009 § 9(a)(2), Haw. (1983); H.F. 534

§ 10(l)(b), Minn. (1983).

"^Comm. B. 5316 § 3(4), Conn. (1983); H.B. 1009 § 9(a)(4), Haw. (1983); H.F. 534

§ 10(l)(d), Minn. (1983).

"^Comm. B. 5316 § 3(17), Conn. (1983); H.B. 1009 § 9(a)(19), Haw. (1983); H.B.

2693 § 10, Or. (1983).

'•^Comm. B. 5316 § 3(17), Conn. (1983); H.B. 1009 § 9(a)(19), Haw. (1983).



898 INDIANA LA W REVIEW [Vol. 20:879

both members of the infertile couple but requires the surrogate to assume

full responsibility for the child in that event. '^^

F. Revocability; Remedies on Breach;

Statutory Noncompliance

Although these legislative proposals allow and regulate surrogate

motherhood, not all proposals require enforcement of the surrogate

motherhood contract. Michigan House Bill 4555 permits the surrogate

at any time to revoke her consent to the termination of parental rights,"^

and Kansas Senate Bill 485 allows the surrogate to declare the contract

void. 120

The opposite position is taken by California Assembly Bill 3771,

which permits the infertile couple to require specific performance from

the surrogate if the surrogate breaches the contract. ^^^ In three proposed

bills, the court decides whether or not the surrogate may keep the child,
but the burden of proof is upon the surrogate to show by clear and

convincing evidence that it is in the best interests of the child to remain

with her. 122

Surrogate motherhood arrangements that comply with the proposed

bills are excepted from all conflicting state statutes, '^^ and some of the

proposed bills impose penalties for statutory noncompliance. Violation

of Michigan House Bill 4555 is a misdemeanor punishable by impris-

onment of up to ninety days, a fine of up to $40,000, or both.^^^

Violating Kansas Senate Bill 361 is a class C misdemeanor, ^^^ while
Hawaii House Bill 1009 establishes a first violation of the proposal as

a misdemeanor and the second violation as a class C felony, ^^s

IV. Surrogate Motherhood Legislation: A Sensible Starting
Point

A. Who May Participate

It has been argued that surrogate motherhood falls within the con-

stitutionally protected right to privacy and procreative freedom. '^^ if the

"«H.B. 4555 § 4(2)(3), Mich. (1985).

'>^M § 6(3).

'^"S.B. 485 §§ 2(b), 9(b)(4), Kan. (1984).

'^'Assembly Bill 3771 § 7551, Cal. (amended Aug. 2, 1982).

'^^Comm. B. 5316 § 14(d), Conn. (1983); H.B. 1009 § 7(c), Haw. (1983); H.F. 534

§ 8(5), Minn. (1983).

^^^See supra note 60.

'^H.B. 4555 § 3(2), Mich. (1985).

'^^S.B. 361 §§ 5(b), 6(b), Kan. (1983).

'^^H.B. 1009 § 8(c), Haw. (1983).
'^'See notes 6-20 supra and accompanying text.



1987] SURROGATE MOTHERHOOD LEGISLATION 899

practice is within this constitutionally protected area, then the state must

show a ''compelling state interest" '^^ to regulate the practice. The United
States Supreme Court has determined that states have a compelling state
interest in protecting the best interests of children and in protecting the

integrity of the family unit.'^^ The tension between the right to privacy
and the state's interests in children and family integrity makes legislative

resolution of surrogate motherhood difficult. Also, because of the in-

creasing demand and decreasing supply of adoptable children, '^° pro-
hibiting surrogate motherhood would effectively deny many infertile
couples the opportunity to have a family or would encourage those

couples to seek a child through black market adoption. '^^ Therefore,

allowing the practice of surrogate motherhood serves the best interests

of both the state and infertile couples who desire to use the practice.
However, the precise impact of surrogate motherhood upon children

born to the surrogate and upon family integrity is not yet known. Because

unknown territory is being explored, a sensible, cautious first step ap-
proach to allowing the practice of surrogate motherhood would be to

limit the practice to married couples with diagnosed infertility problems.

Surrogate motherhood could be restricted to married couples with

diagnosed infertility problems and remain consistent with the Fourteenth

Amendment to the Constitution. The reasoning adopted by the United
States Supreme Court in Katzenbach v. Morgan^^^ supports this approach.

In that case, the Court upheld the constitutional validity of Section 4(e)

of the Voting Rights Act of 1965, which provided that no person who
had completed the sixth grade in a Puerto Rican public or accredited

private school in which the classroom language was other than EngHsh

could be denied the right to vote in federal, state, or local elections

due to the inability to read or write EngHsh.'" Section 4(e) precluded

enforcement of the New York state election laws "requiring an ability
to read and write English as a condition of voting. "'^'* One argument
made by the plaintiffs, registered voters in New York City, was that
because Section 4(e) applied only to Puerto Rican schools, it violated

the Fourteenth Amendment by discriminating against non-"American-
flag schools ... in which the language of instruction was other than

EngHsh." 135 jY^Q Court viewed Section 4(e) as a permissible Hmitation

because rather than denying rights to a particular group (persons from

'2»Roe V. Wade, 410 U.S. 113, 155 (1973).

'^'5ee supra note 30.

'^"Parker, supra note 2.

'"Katz, supra note 36, at 7-8.

'"384 U.S. 641 (1966).

'"M
'''Id. at 644.

'''Id. at 656.



900 INDIANA LAW REVIEW [Vol. 20:879

non-American flag schools), it extended rights to a group who were
previously denied those rights by state law.'^^ In speaking for the majority

of the Court, Justice Brennan stated: '^^

[I]n deciding the constitutional propriety of the limitations in

such a reform measure we are guided by the familiar principles
that a '* statute is not invaUd under the Constitution because it

might have gone farther than it did,"*^^ . . . and that "reform

may take one step at a time, addressing itself to the phase of
the problem which seems most acute to the legislative mind."'^^

Therefore, state legislation legalizing surrogate motherhood need not, at

least initially, extend to all individuals both married and unmarried, but

may be restricted to married couples with diagnosed infertility problems.
If this initial legislation proved successful in protecting the state's interests

in children and family integrity, then the state could consider extending

the right to unmarried individuals. Both California Assembly Bill 3771

and Michigan House Bill 4555 are consistent with this approach in that

those bills restrict surrogate motherhood to married couples with infertility

problems. ^"^

Another cautious part of the legislation would be a requirement that

both members of the infertile couple and the surrogate be at least twenty-

one years of age to participate in a surrogate motherhood arrangement.

No other proposed bill requires the natural father, his wife, and the
surrogate mother to be twenty-one years of age to participate in a

surrogate motherhood arrangement. The rationale for requiring the min-

imum age is maturity level. A person twenty-one years of age or older
is likely to be more mature than an individual who is under twenty-
one years of age. This added maturity helps insure that the parties to

the surrogate motherhood contract will be better able to fully appreciate

the risks and responsibilities that they are undertaking in the surrogate

motherhood arrangement. Support for the age requirement may be found
by analogizing to the state's prohibition of the use or consumption of

alcoholic beverages by a minor. ^"^^ The state has authority under its police

powers to impose such a restriction, ^"^^ and part of the rationale for the

prohibition is to protect minors from the harmful effects of intoxicating

'^^Id. at 657.

'''Id.

'^^Roschen v. Ward, 279 U.S. 337, 339 (1928).

'^^Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1954).

'""See supra note 65.

'''E.g., Ind. Code § 7.1-5-7-8 (Supp. 1986) provides:
"(a) It is a Class C misdemeanor for a person to recklessly sell, barter,

exchange, provide, or furnish an alcoholic beverage to a minor."

''^See Crane v. Campbell, 245 U.S. 304 (1917).



1987] SURROGATE MOTHERHOOD LEGISLATION 901

liquors J"*^ Analogously, the state would want to protect minors from

the harmful effects of entering into a surrogate motherhood arrangement

that they were not mature enough to successfully complete. However,

the rationale for providing an age requirement in the surrogate moth-

erhood arrangement extends beyond the rationale for prohibiting the use

or consumption of alcoholic beverages by minors. The state must also

protect the interests of the child that will be born to the surrogate, and

it would not be in a child's best interest to be born to parents who
were too immature to fully appreciate the responsibilities of parenthood.

Therefore, the age requirement would be another cautious restriction

designed to protect the state's interests and to enhance the probability

of a successful surrogate motherhood arrangement.

B. Physical and Psychological Examination;

Investigation of the Home

A vahd surrogate motherhood agreement should be based upon the
informed consent of the parties to the contract. ''^'* Physicians, psychiatrists

(or Hcensed psychologists) and lawyers should be involved in the process,

but only to counsel. It should be up to the parties themselves to make
the choices involved.'"*^ Five of the proposed bills use this approach by

permitting the parties to decide for themselves whether or not to proceed

with the surrogate motherhood arrangement after the required medical

and psychological evaluations have been performed.'"*^

To fulfill the informed consent standard, the prospective surrogate
mother and the prospective natural father should undergo a physical

examination and genetic screening administered by a licensed physician

to determine the likelihood that a normal, healthy child free of genetic

abnormalities will be born.''*'^ The physical examination and genetic

screening results should be reviewed, evaluated and discussed in a con-

ference with the physician, the prospective surrogate, and the infertile

couple.

Likewise, the prospective surrogate and the infertile couple should

undergo psychological counsehng administered by a licensed psychiatrist

or psychologist. ^"^^ In the case of the prospective surrogate mother, the

psychiatrist or psychologist should evaluate the surrogate's ability to

complete the surrogate motherhood process and ultimately relinquish the

'^^Elder v. Fisher, 247 Ind. 598, 603, 217 N.E.2d 847, 851 (1966).

""Parker, Surrogate Motherhood, Psychiatric Screening and Informed Consent, Baby

Selling, and Public Policy, 12 Bull. Am. Acad. Psychiatry & L. 21, 25-26 (1984).
'"barker, Surrogate Motherhood: The Interaction of Litigation, Legislation and Psy-

chiatry, 5 Int'l J.L. & Psychiatry 341 (1982).
'**5ee supra note 83.

"^See supra note 71.

"•^H.B. 4555 § 4(l)(c), (f), Mich. (1985).



902 INDIANA LA W REVIEW [Vol. 20:879

child to the infertile couple, and counsel the surrogate mother about

the physiological and emotional ramifications of being pregnant, and

the potential emotional complications that may result upon relinquishing
the child to the infertile couple. ^''^

In the case of the infertile couple, the psychiatrist should evaluate

the infertile couple's capacity to complete the surrogate motherhood

process and to accept, love and raise a child born from the surrogate,

particularly if the child is handicapped. The psychiatrist should also

counsel the infertile couple concerning any potential emotional conflicts

that may result from accepting and raising a child born from the sur-
rogate.'^'' The results of the psychological exams should be reviewed,

evaluated and discussed in a conference with the psychiatrist or

psychologist, the prospective surrogate, and the infertile couple.

Nearly all of the proposed bills require physical exams and genetic

screening, '^^ and many of the proposed bills also require some psycho-
logical evaluation^" and counseHng,^^^ but those proposals do not go

far enough to insure informed consent of the parties. Informed consent

is based upon a goal of full disclosure of the information necessary to
make a decision and a full understanding of that information. ^^"^ A face
to face meeting of the infertile couple, the prospective surrogate, and

the medical professional can best accomplish that goal because questions

and concerns that would be addressed in such a conference are material

to all parties.

Several proposed bills also require an investigation of the home of
the natural father and his wife by a social welfare agency. ^^^ The purpose

of the investigation is to determine the capacity of the natural father

and his wife to love, care and provide for the child born to the

surrogate. '^^ However, an investigation into the home of the infertile
couple should not be required because the psychological counseling pro-

cess is designed to identify the infertile couple's capacity to love and

care for the child born to the surrogate. Also, an infertile couple that

is financially able to go through with the surrogate motherhood process

would almost certainly be able to provide for the child's physical (food,

clothing, shelter) and educational needs.

Another important requirement expands an idea found in Maryland

House Bills 1595 and 1552. Under those proposals a natural father may

'^^H.B. 4555 § 4(l)(f), Mich. (1985).

""H.B. 4555 § 4(l)(c), Mich. (1985).

'"5ee supra note 71.

'"See supra note 73.

'"H.B. 4555 § 4(l)(c), (f), Mich. (1985).

'^*See supra note 144, at 25-27.

'"5ee supra note 86.

'"5ee supra note 87,



1987] SURROGATE MOTHERHOOD LEGISLATION 903

request a surrogate to undergo psychological counseling prior to and

after the birth of the child if recommended as a result of the initial
psychological evaluation. '^^ It would be important for the surrogate and

the infertile couple to receive continued counseling throughout the sur-

rogate's pregnancy because the surrogate or the infertile couple may
have second thoughts about going through with the arrangement after

committing themselves to it. Continued counseling is important to identify

and resolve these second thoughts and any other psychological problems

that the parties may encounter.
, Psychological counsehng should also continue for the surrogate for

six weeks after the birth of the child. This period of counseling should

be required for the surrogate to aid her in coping with the medical

phenomenon known as postpartal depression, which can occur during
a period of about six weeks after childbirth. '^^

C. The Contract

Following the initial requisite medical exams and counseling sessions,

if the infertile couple and the prospective surrogate want to proceed

with the surrogate motherhood process, then they should obtain inde-

pendent legal counsel to negotiate a contract. Most of the legislative

proposals contain this requirement so that each party's interests will be

adequately protected. '^^ The contract should specify all medical and legal

expenses of the surrogate that will be paid by the infertile couple and

the surrogate's fee for services in conceiving, carrying and giving birth

to a child for the infertile couple. '^'^

Most proposed bills also require the surrogate's husband, if she is

married, to sign the contract.'^' However, the contract should go further

with respect to the surrogate's husband. The contract should explicitly

state that the surrogate's husband understands that his wife will be a

surrogate mother, that he understands the terms of the contract and the

legal rights, responsibilities and risks that flow to the surrogate, and

that he consents to the surrogate motherhood arrangement. The sur-

rogate's husband should further agree that he will abstain from sexual

intercourse with his wife during the artificial inseminating process. These

requirements are important to prevent any friction between the surrogate

mother and her husband that would adversely affect the surrogate moth-

erhood arrangement and to prevent the possibility that the surrogate's

'"H.B. 1595 § 5-216(7)(I)(2), Md. (1984); H.B. 1552 § 5-216(7)(I)(2), Md. (1985).
'58E. FiTZPATRiCK, S. Reeder & L. Mastroianni, Maternity Nursing 305 (12th ed.

1971).

'"See supra note 89.

'^See supra note 90.

'*'5ee supra note 103.



904 INDIANA LA W REVIEW [Vol. 20:879

husband would be the real biological father of the child born to the

surrogate.

As required by most proposed surrogate motherhood bills, the con-
tract should be signed by the parties. *^^ The signed document operates

as a continuing offer by the infertile couple that is accepted by the

surrogate upon successful artificial insemination (insemination that results

in conception) of the surrogate. Until successful artificial insemination

of the surrogate, any party (including the surrogate's husband) may,

upon written notice to the other parties, back out of the proposed

arrangement. This escape hatch for the parties operates similarly to the

provision for early termination of the contract found in four of the

legislative proposals. '^^ However, power to preclude acceptance of the

offer before successful insemination of the surrogate should be extended

to include the surrogate's husband so that conflicts between the surrogate

and her husband that would adversely affect the surrogate motherhood

arrangement may be avoided.

D. Technical Requirements

Some of the proposed bills require court approval of the surrogate
motherhood arrangement.'^"* Such a procedure is important in insuring

that the parties have given informed consent to the surrogate motherhood

contract.

The infertile couple, the prospective surrogate, the medical profes-

sionals, and the attorneys should submit affidavits to the probate court

judge. These affidavits should demonstrate that the required examinations

and counseling have been conducted and that the infertile couple and

the prospective surrogate have given their informed consent to the sur-

rogate motherhood contract. The contract should also be presented to

the judge to insure that the required provisions are included in the

contract and that all necessary parties (including the surrogate's husband)

have signed the contract.

If the probate judge determines that the statutory guidelines have

been met and the parties have given their informed consent to the

contract, then the judge shall approve the contract. Once judicial approval

has been given, the prospective surrogate may undergo artificial insem-
ination, administered by a licensed physician. '^^ Once successful insem-
ination of the surrogate is achieved, the contract becomes enforceable.

'"Comm. B. 5316 § 3(15), Conn. (1983); H.B. 1009 § 9(a)(17), Haw. (1983); S.B.

485 § 9(b)(5), Kan. (1984); H.F. 534 § 10(3)(a), Minn. (1983).

^^See supra note 104.



1987] SURROGATE MOTHERHOOD LEGISLATION 905

E. Responsibilities and Risks

Once the surrogate has conceived, the infertile couple should have
all legal rights and responsibilities for the developing embryo and fetus;

and when the child is born, the infertile couple should be the legal
parents of the child. '^ Placing these rights and responsibilities with the

infertile couple solves several problems. First, placing legal parenthood

in the infertile couple avoids the problem of statutes like the Indiana

statute governing consent to an adoption in which a mother cannot

validly consent to an adoption until the child is born.'^^ Because the

infertile couple would be the legal parents of the child born to the

surrogate, adoption would be unnecessary. Second, the problem of shift-

ing responsibilities for the child found in other proposed bills would be

avoided. ^^^ In Maryland House Bill 1552, parental rights and respon-

sibilities for the child during the period from conception to birth lie

with the surrogate mother and the natural father. When the child is
born, these parental rights and responsibilities shift to the natural father

and his wife.'^^ Under Connecticut Committee Bill 5316, Hawaii H.B.

1009 and Minnesota H.F. 534, when the surrogate's sixth month of
pregnancy is complete, the court issues an interim order giving custody

to the natural father and his wife.'^° Rather than shifting parental rights

and responsibilities, these rights and responsibilities should always lie

with the infertile couple. The surrogate mother conceives, carries and

bears a child for the infertile couple. Therefore, the infertile couple

should always be the legal parents of the child and have all the legal

rights and responsibilities normally accorded to parents.

Establishing the infertile couple as the legal parents of the child

from the moment of conception does not, however, restrict the surrogate's
constitutional right of privacy, which encompasses her decision to abort

the pregnancy. •''' Three of the proposed bills have required the surrogate

to contractually waive her right to abort the pregnancy. ^^^ However, the

surrogate's constitutional right to abort a pregnancy probably cannot

be waived by contract. ^^^

Three of the proposed bills place the risk of complications and death

that may result from the pregnancy upon the surrogate. ^'^'' This risk

'^Bitner, supra note 35 at 254,

^^^See supra note 48.

^^^See supra notes 110-11.

•*'H.B. 1552 § 5-211, Md. (1985).
'™See supra note 111.

'^'Roe V. Wade, 410 U.S. 113, 155 (1973). See also supra note 99 and accompanying

text.

^^^See supra notes 97-98.

^''^See supra note 99.

^''*See supra note 115.



906 INDIANA LA W REVIEW [Vol. 20:879

should be placed upon the surrogate because it would be unfair to make
the infertile couple insurers of the pregnancy.

Finally, two of the proposed bills address the event of death of one

or both members of the infertile couple.'''^ These bills establish that if

one member of the infertile couple dies before the child is born, then
the other member assumes full responsibility for the child born to the
surrogate. If both members of the infertile couple die before the child

is born, the surrogate has the option of either keeping the child or

giving the child up for adoption. However, if the infertile couple are

legal parents of the child from the moment of conception of the child,
then the death of one member of the infertile couple during the surrogate's
pregnancy would still leave legal parenthood in the surviving member
of the infertile couple. If both members of the infertile couple die, then

the surrogate mother should have the option of either keeping the child

or giving the child up for adoption because the surrogate is the biological

mother of the child.

F. Revocability; Remedies on Breach;

Statutory Noncompliance

The surrogate could breach the contract by aborting the pregnancy.

As mentioned above, •''^ the surrogate's right to an abortion most likely
cannot be restricted by contract. In fairness to the infertile couple, if

the surrogate aborts the pregnancy, then she should be required to

reimburse the infertile couple for the expenses that the infertile couple

have paid for the surrogate.

Michigan House Bill 4555 allows the surrogate to revoke her consent

to the termination of parental rights,^''"' and Kansas Senate Bill 485 allows

the surrogate to declare the contract void.'"^^ Allowing the surrogate these

options is unfair to the infertile couple. Unless the surrogate is within

her constitutional right to abort the pregnancy, the infertile couple should

be permitted to require specific performance of the contract when the
child is born. The purpose of the surrogate motherhood statute should

be to permit infertile couples to have children by means of a surrogate

mother. This purpose is seriously undercut if the surrogate mother is

permitted to keep the child. The surrogate mother's purpose is to con-
ceive, carry and bear a child for the infertile couple. The infertile couple
should be the legal parents of the child born to the surrogate ab initio.

The infertile couple have the same responsibilities of any parents and
if they do not want the child, then they would still have a duty to find

'^^Comm. B. 5316 § 3(17), Conn. (1983); H.B. 1009 § 9(a)(19), Haw. (1983).
^^^See supra note 99.

'"H.B. 4555 § 6(3), Mich. (1985).

'^«S.B. 485 §§ 2(b), 9(b)(4), Kan. (1984).



1987] SURROGATE MOTHERHOOD LEGISLATION 907

a good home for the child. The duty is no different for any parent.'"'^
Also, if paternity testing reveals that the husband of the infertile

couple is not a potential father of the child, then there would be no

contract at all. The contracting document operates as a continuing offer
which is accepted only by successful artificial insemination of the sur-

rogate. If the husband of the infertile couple is not a potential father

of the child, then there has been no successful artificial insemination

of the surrogate and, therefore, no acceptance of the offer.

Finally, surrogate motherhood contracts that do not comply with

this statute should be forbidden as constituting child selling, a criminal

offense. '^° Making noncompliance with the statute a criminal offense
provides strong incentive for all parties to the contract to comply with

the statute, and because one of the greatest concerns of the state is

child selling, it is logical to regard an illegal surrogate motherhood

contract as child selling.

V. Conclusion

The practice of surrogate motherhood provides a technological so-
lution to the infertility problems of many infertile couples. The state
should not prohibit the practice just because it is uncharted legal ground.

However, the state should proceed cautiously in mapping out the legal

boundaries of this area in which there are still so many unresolved
questions. The proposed legislation is a sensible, cautious first step in

providing a logical and workable legal solution to the practice of surrogate

motherhood, a solution that aids infertile couples in establishing a family

and furthers the state's interest in protecting family integrity and the

welfare of children.

D. Michael Young

^'Ramsey v. Ramsey, 121 Ind. 215, 216, 23 N.E. 69, 70 (1889).

'«°5ee Ind. Code § 35-46-1-4, supra note 38.