A MESSAGE TO LAWMAKERS : Judge Invites Legislature to Head Off Surrogacy Problems

In ruling that a surrogate mother has no parental right to an infant she bears for genetic parents through in-vitro fertilization, Superior Court Judge Richard N. Parslow Jr. called on the California Legislature to clear up questions in the law:

“I have some suggestions for the Legislature, briefly. They can do as they see fit. They are better equipped to deal with this sort of problem, I think, than the courts. . . .

“There has been some criticism, of course, by the scholars--there always is--of the Baby M decision. Suggesting that perhaps (the justices) were a bit patronizing of women. . . . But our Legislature, I think, can take some steps here to head off some problems. . . .

“I believe clearly the in-vitro fertilization genie is out of the bottle and you’re not going to put it back.

“Once folks that are unable to carry a child, but can genetically produce one . . . from their two bodies and hearts, they are going to try to do it. And they spend a lot of money and heartache and time getting it done. . . . But they are going to be vulnerable, and arguably vulnerable (on the surrogate mother) side of the transaction, too. . . .

“There have been efforts in this state and other states to have these agreements declared illegal, void, unenforceable. I think probably . . . there are some constitutional problems with trying to outlaw them altogether.

“There has been much in the case law all the way to the Supreme Court on procreative rights. In this situation, the procreative right we are talking about is the right of the genetic mother, not the procreative right of the carrying (surrogate). . . .

“It’s my understanding that one of the approaches taken by (foes of surrogacy) is not to have them declared illegal across the board but to have provisions in (the contracts) that make them so burdensome that no one in their right mind would enter into one.

“I have . . . four suggestions that might be helpful. . . .

“One, I think intensive psychological evaluation of the parties should be conducted . . . by some independent agency rather than the organizations . . . that are in the surrogacy business, shall we say. Perhaps it could be an offshoot of the adoption folks that deal with the screening. . . .

“(Second,) I would require that the wife, the genetic natural mother, should be medically unable to carry a child to term. That will take care of those folks who are concerned . . . that if you have enough money you can buy somebody to carry your child.

“It’s interesting in a way when you relate that back to a practice that went on into this century, of women of means hiring young girls from the village to serve as wet nurses. And oftentimes motherhood ended at birth . . . and I’m not sure anyone would argue that the person that nursed the child for a year from 7 pounds to 30 pounds got parental rights and became the mother. . . .

“Third, I think it should be absolutely made clear prior to implantation in these (in-virtro fertilization) cases, that all involved clearly understand that when the child is born, it will immediately go to the genetic parents, and that the surrogate will have no parental rights. . . . It should be made clear that the natural parents must take custody of the child. . . .

“And the last requirement I have--a lot of this can be refined by people who are better informed than I on the subject--the surrogate should have previously carried at least one child to term. I think that then they know what it’s like. They know what the feelings are and it would assist them in their decision-making process.

“I think this understanding on relinquishment as part of the agreement . . . will then avoid a large problem that we’ve seen in this case . . .

“It’s essential that the expectations of the parties to the agreement be fulfilled, because otherwise you increase the chances that . . . you can have emotional and financial extortion of the natural parents, and protracted and bitter custody litigation. And that’s not in the best interest of the child.”