EvaS: Our topic tonight is surrogacy, the legal aspects of it. Our guests
are LisaSmall and XineW. What is surrogacy, medically speaking?
LisaSmall: Well, Eva, "surrogacy" is a phrase that comes from
the 60's practice of hiring "sexual surrogates" to help people
overcome their sexual difficulties. When we got to the point where reproductive
technology permitted people to have reproductive surrogates for their legal
spouses, the phrase carried over. The sexual connotation has mostly been
lost. Basically, it means "substitute."
EvaS: How common is surrogacy?
LisaSmall: Well, artificial insemination -- in which one man's sperm is
used instead of a husband's -- is actually pretty common, because that technology
has been around for about 30 years. Maternal surrogacy, meaning using a
woman's egg or a woman's uterus for some other woman to have a child, is
not at all common. The procedure is more difficult than artificial insemination
and has not been available as long... really only about 15 years.
EvaS: What is the law regarding surrogacy?
Xine W: There are three main legal schemes we could use for surrogacy. We
could (1) make it illegal, and criminal (like kidnapping). We can (2) permit
it, and allow contracts to be signed by surrogates and prospective parents
that will be enforced by the courts. Or we can (3) do neither -- not prosecute
anyone, but also refuse to use the legal power of the courts to enforce
a contract for surrogacy in any way. Currently, I am not aware of any statutes
that adopt any of these rules.
EvaS: Interesting.
Xine W: But courts, nonetheless, have to struggle with cases presented to
them. And decide them under the precedents that are all over the map.
LisaSmall: Actually, Xine, the case law is so muddled that it's impossible
to say.
Xine W: Right, I was trying to distinguish between the muddled case law
and the absence of statutory law.
LisaSmall: <---agrees with Xine. For the sake of our listeners, case
law is what judges decide and statutory law is what legislatures write.
EvaS: I'm not sure I understand the ramifications.
DXSMac: Why should "legal" get involved at all? Or is it mostly
due to the surrogates "changing their mind" and wanting to keep
the child? Is that the "legal" thing that happens the most?
Xine W: Well, if someone wants to have a contract that is enforceable by
either party, law
enters the picture. Yes, Mac, the dispute usually arises when the surrogate
wants to keep the child. But there are also cases where parents refuse to
pay if the child is not healthy or if there is a miscarriage. So, both parties
might want to enforce a legally binding contract.
LisaSmall: There have been a few other sticky issues: A surrogate who bore
twins, and the hiring couple only wanted one of them. And in some places,
resistance to the whole idea -- for example, a black woman who announced
that she wanted to get a white egg. That was a British case. And surrogacy
using young women's eggs in older women's bodies, especially in Italy.
LisaSmall: The legal disputes arise from the very beginning -- who owns
the egg? down to the end -- should the surrogate mother get visitation of
the child if born alive?
EvaS: Are women treated differently if they provide the egg from those whose
uterus is used?
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