Solomon Would Weep: A Comment on In the Matter of Baby M and the Limits of Judicial Authority

The author is a member of the drafting committee of the Uniform Status of Children of Aided Conception Act, of the National Conference of Commissioners on Uniform State Laws. The views expressed here are those of the author and do not reflect the views of the drafting committee or the Conference. As part of a seminar offered at the Iowa Law School, a group of law students drafted a “Model Reproductive Technologies and Surrogacy Act” that addresses many of the issues raised by surrogacy arrangements. The Model Act has been published as the “Model Reproductive Technologies and Surrogacy Act,” Iowa Law Review, 72 (1987): 943.

The very ambiguity of the terms “family,” “mother,” and “father” in the surrogacy context would ordinarily counsel against their use, for the terms themselves carry connotations of our current preconceptions about the applicable legal and social arrangements. I will use them in this essay despite the confusion they engender, however, for I am not prepared to burden this short discussion with a new set of terms. In the October 1984 issue of Law, Medicine & Health Care, Alexander Capron made the terminological point nicely: [M]any of the new reproductive possibilities remain so novel that terms are lacking to describe the human relationships they can create. For example: • What does one call the woman who bears a child conceived from another woman's egg? Is she the “carrying mother” (as the British say)? Or the “gestational mother” (which might be a better reminder of the active—and very important—developmental process in which she is an essential participant)?… • How does one describe the relationship between the husband of a surrogate mother (who has been inseminated by another man's sperm) and the resulting child? Or the relationship between that child and other children born to the surrogate mother? In fact, it is not even clear what we should call the area under inquiry. ( Capron Alexander , “The New Reproductive Possibilities: Seeking a Moral Basis for Concerted Action in a Pluralistic Society,” Law, Medicine & Health Care, 12 [1984]: 192.)

For the purposes of this essay, I use the term “surrogacy” to include agreements with a person or persons by which a woman agrees to bear a child conceived through assisted reproduction and to relinquish the child to that other person(s) upon the child's birth. Another definition, which is both more restrictive and more expansive, can be found in the “Model Human Reproductive Technologies and Surrogacy Act,” supra note 1, at 952: “Surrogacy” or “Surrogacy Arrangement” means any arrangement by which a woman agrees to be impregnated by noncoital means, using either the intended father's sperm or the intended mother's egg, or both, with the intent that the intended parents are to become the parents of the resulting child after the child's birth.

See supra, note 2.

I am using the term “biologically” in a loose sense, but I intend by it to indicate that both Ms. A, a generic parent, and Ms. B, who carried the child in her womb and provided it sustenance, protection, and much more, are physically related to the child in dear and unbreakable ways.

See Olmstead v. United States, 277 U.S. 438, 478 (Brandeis, J., dissenting); Thornburgh v. American College of Obstetricians & Gynecologists, 106 S. Ct. 2169, 2187 (Stevens, J., concurring); Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).

Uniform Parentage Act sec. 4, 9A Unif. Laws Ann. 587 (1979). The presumption of paternity under the Uniform Act is strong and difficult to overcome. See id., comment to sec. 4; sec. 6–7.

Indeed, in cases of assisted reproduction, the paternity of a husband who is known not to be the genetic father is conclusive if he consented to paternity at the time of an insemination. Uniform Parentage Act, sec. 5, 9A Uniform Laws Ann. 587 (1979).

See Foster Henry , A “Bill of Rights” for Children (Springfield, Ill.: Thomas, 1974); Fredericksen Hazel Mulligan R.A. , The Child and His Welfare (San Francisco: Freeman, 1972).

See Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Roe v. Wade, 410 U.S. 113 (1973); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).

See cases cited supra, note 10.

See, e.g., Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1986); Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).