October 14, 2007
Case-law in California providing surrogate parents legal protection has spurred an influx of same-sex partners to the state for procreation. One such case, regarding an American couple living in Australia, was recently in the news. They sought in-vitro fertalization in California due to restrictive Australian laws (prohibiting surrogacy). The couple also made international news headlines because they chose the birth sex of their child in the IVF process. See The Daily Telegraph at News.Com.au/dailytelegraph (Oct. 14, 2007--"Gay couple buys 'designer' sons from US").
Genetic issues aside, California case-law provides protection by enforcing surragocy contracts and legally protecting same-sex parents' intentions to parent a child (either through their own biological materials or through donated eggs/sperm) through a surrogate.
Although second-parent adoption is often a good choice for potential same-sex parents, it is not always the preferred choice. Many couples wish to raise a child of "their own," using biological sperm/eggs of the birth parents.
Case-law varies by jurisdiction and the legal questions get even murkier across state lines.
Interestingly, some scholars have argued that a surrogate contract is a matter of interstate commerce, which should be regulated uniformly by Congress presumably under its commerce clause power. See Katherine Drabiak et. al, Ethics, Law & Commercial Surrogacy: A Call For Uniformity, 35 J.L. Med. & Ethics 300 (2007).
But, contract law is generally left within the purview of the states. Not to mention the fact that surrogacy is not a normal contract involving the sale of goods or services. And, yes, we have proposed uniform laws across states for the sale of goods worth a minimum of $500 (i.e., the Uniform Commercial Code). Similarly, we have Uniform Laws relating to child custody as well (i.e., the Uniform Child Custody Jurisdiction and Enforcement Act).
It seems that a uniform approach to parenthood was attempted through the Uniform Parentage Act, but, obviously, state treatment of surrogacy contracts is not uniform today (many states adopted the Uniform Parentage Act or other similar legislation, but not all of the Acts address surrogacy). For example, some states forbid payment for surrogacy contracts, others do not, etc.
However, the suggestion that such contracts deal with "interstate commerce" could raise ethical questions (which have obviously already come up for many states, as they forbid payment for surrogacy contracts). Are we now in the process of selling babies to the highest bidder? Or are we really engaging in a contract relating to services--ie., you will be the vessel carrying the child and I will pay you for this "service."
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