Report to the General Assembly (Published)

Document Title

Surrogate Motherhood

Author

Joint Subcommittee

Enabling Authority

SJR 178 (1989)

Executive Summary

In response to the national controversy surrounding the Stern-Whitehead custody dispute, better known as "the Baby M Case," a number of resolutions were introduced during the 1988 Session of the General Assembly calling for studies of surrogate motherhood. Two of these resolutions, SJR 3, patroned by Senator Thomas J. Michie, Jr., and HJR 118, patroned by Delegate Vincent F. Callahan, Jr., were approved, thereby establishing this study of surrogate motherhood and the new reproductive technologies.

The enabling resolution noted that, because an estimated 10% to 15% of married couples in the United States experience infertility, and the use of new reproductive technologies has enabled many childless persons to become parents, society faces intricate dilemmas. The resolutions also observed that new reproductive technology's and surrogacy arrangements have increased public concern as to whether a mother can be forced to give up her baby upon entering into a contract, whether a woman should be permitted to receive compensation for serving as a surrogate mother, and awareness of the difficulties related to resolving the many perplexing legal issues such as custody disputes.

The Joint Subcommittee was directed to determine the number of surrogacy contracts made in the Commonwealth and the potential for an increase in such contacts and arrangements; examine the various new reproductive technologies and assess their potential effects on health and social policy and planning; determine the need for regulation of such technologies; and determine whether surrogacy contracts or arrangements should be legal, and, if so, how such arrangements should be regulated. In accomplishing these goals, the Joint Subcommittee was instructed to analyze the constitutional issues of privacy and reproductive freedom, and to assess ways to protect the interests of children conceived through the application of the new reproductive technologies, the surrogate, the receiving parents, and any other adults who may participate in these arrangements. In addition, the Subcommittee was directed to examine the need to limit the number of inseminations and donations of sperm by one donor to avoid the risk of incestuous unions between the resulting children; the efficacy of maintaining genetic records; the psychological effects on surrogate mothers, children born of new technologies, and the receiving parents; the feasibility of developing mechanisms for the delivery of health and counseling services; the state laws pertaining to legal liability of parties involved in these arrangements; the legal status of children born as a result of such technologies vis-à-vis current state law regarding inheritance and the establishment of paternity, child support and custody, visitation rights, child welfare and protective services, adoption and child abandonment, and state and federal laws and regulations governing entitlements; the legal sufficiency of current state statutes on informed consent, human research, vital records, health statistics, anatomical gifts, and prohibited marriages; and other related issues deemed appropriate.