Carrying Capacity: Should Georgia Enact Surrogacy Regulation?

• Publication year: 2019

Carrying Capacity: Should Georgia Enact Surrogacy Regulation?

Madeline Mae Neel

CARRYING CAPACITY: SHOULD GEORGIA ENACT SURROGACY REGULATION?

Madeline Mae Neel^*

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While modern gestational surrogacy technology has existed for almost forty years, surrogacy is viewed as a matter of state law because the United States has yet to regulate it at the federal level. Many have advocated for either federal legislation or their own individual states to enact legislation addressing surrogacy, but Georgia is one of many states that still lacks any laws regulating—or even mentioning—surrogacy agreements. To make the process more uncertain for couples contemplating surrogacy, Georgia also lacks any case law that could provide parties to surrogacy agreements with guidance on how to proceed or how any dispute may be resolved. To provide Georgia citizens with legal stability and certainty, the Georgia legislature should pass legislation addressing traditional surrogacy agreements and acknowledging the technology and use of surrogacy.

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Table of Contents

I. Introduction..........................................................................335

II. Background..........................................................................336

A. THE TECHNOLOGY AND THE PREFERENCES: TRADITIONAL AND GESTATIONAL SURROGACY.................................... 337

1. Traditional Surrogacy v. Gestational Surrogacy.... 338
2. Why Gestational Surrogacy Is Preferred.................339

B. WHY IS SURROGACY SO CONTESTED?..............................340

1. Critics......................................................................341
2. Advocates................................................................. 343

C. THE COMPLEXITY OF SURROGACY LAWS: INTENTIONALLY AND IN THE U.S.A........................................................... 344

III. Regulation in Georgia......................................................346

A. CONSTITUTIONALITY......................................................348
B. CREATING A SURROGACY LAW IN GEORGIA..................... 351

1. How the 2017 Uniform Parentage Act Could Work in Georgia................................................................... 354
2. Georgia's Best Bet....................................................357

IV. Conclusion..........................................................................360

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I. Introduction

In January of 2017, Kim Kardashian and Kanye West welcomed their child, Chicago, into the world.¹ Without the help of a surrogate mother, however, Kim Kardashian may not have been able to safely bring Chicago into her family. Like many other women who must endure infertility problems, Ms. Kardashian suffered from placenta accreta during her previous two pregnancies, which can endanger both the mother's and child's life.² Praising the benefits it brought to her family, Ms. Kardashian described surrogacy as "the best experience," one she "would recommend . . . for anybody."³ As celebrities continue to utilize surrogacy, the American public's awareness of the previously unconventional option will only increase.⁴ Fortunately, the Kardashian-West family was able to confidently and legally work with a surrogate mother in California, "one of the most surrogacy-friendly states."⁵ unfortunately, though, the surrogate process is uncertain for hopeful parents in other American states, including Georgia.⁶

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While modern gestational surrogacy technology has existed for almost forty years, surrogacy is viewed as a matter of state law because the United States has yet to regulate it at the federal level.⁷ Many have advocated for either federal legislation or for their own individual states to enact legislation addressing surrogacy, but Georgia is one of many states that still lacks any laws regulating—or even mentioning—surrogacy agreements.⁸ To make the process more uncertain for couples contemplating surrogacy, Georgia also lacks any case law that could provide parties to surrogacy agreements with guidance on how to proceed or how any dispute may be resolved.⁹ This Note discusses the benefits and problems associated with regulating surrogacy in Georgia and the type of surrogacy law, if any, that has the best chance of being passed there. Part II examines the history and technology of surrogacy along with existing international and U.S. state laws regulating surrogacy. Part III considers legislative options for Georgia and the most likely outcome of a successful effort to pass a surrogacy law in Georgia.

II. Background

Internationally and nationally, laws differ on how to address surrogacy. Not only are there two types of surrogacy that complicate the debate, but there are also a whole host of moral, political, and social issues over whether surrogacy should be banned or allowed, and if so, how it should be regulated.¹⁰ To determine the direction the Georgia legislature should take in addressing surrogacy, it is

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necessary to examine the technology behind surrogacy, why surrogacy is contested, and how other countries and states regulate surrogacy.

A. THE TECHNOLOGY AND THE PREFERENCES: TRADITIONAL AND GESTATIONAL SURROGACY

Surrogacy regulation today generally makes two distinctions: (1) between traditional and gestational surrogacy and (2) between compensatory and altruistic surrogates.¹¹ A compensatory surrogacy arrangement exists when the intended parents pay the surrogate mother a fee for her services in carrying and delivering the baby.¹² Alternatively, altruistic surrogacy occurs when the surrogate acts as a donor whose principal motivation in carrying the child is to help intended parents who otherwise would be unable to conceive.¹³ In both situations, however, the intended parents will often reimburse the surrogate mother for medical expenses and living expenses incurred as a result of the pregnancy.¹⁴

Today, a surrogate mother is impregnated by artificial insemination (usually using sperm from the intended father) or by implantation of an embryo (often using genetic material from both intended parents).¹⁵ With the invention of artificial insemination,

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technology detached conception from sex,¹⁶ and subsequently, with the breakthrough of in vitro fertilization (IVF), the use of surrogacy expanded rapidly.¹⁷ In addition to removing sexual intercourse from the equation, modern technology allows for the possibility that the surrogate mother may carry a child who is genetically related to both intended parents but genetically unrelated to her.¹⁸

1. Traditional Surrogacy v. Gestational Surrogacy.

Traditional surrogacy involves a surrogate mother using her egg and intended parents providing the sperm, either from the intended father or a sperm donor.¹⁹ Usually, the surrogate's egg is fertilized through artificial insemination, but IVF may also be used.²⁰ Therefore, when a surrogate mother agrees to a traditional surrogacy arrangement, she is not only agreeing to carry the child for nine months, but she is also agreeing to give up a child to whom she is genetically related.²¹

With gestational surrogacy, IVF is always used,²² but the embryo is created using an egg from the intended mother or from a donor.²³ The embryo is then implanted in the surrogate's womb.²⁴ Therefore, in contrast to traditional surrogacy, the surrogate mother is not genetically related to the child to whom she gives birth.²⁵

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2. Why Gestational Surrogacy Is Preferred.

Gestational surrogacy is now the most common preference for parents choosing to utilize surrogacy.²⁶ This partiality arose because, while uncommon, there exist a few high-profile cases in which surrogate mothers have attempted to keep surrogate children after giving birth, resulting in a legal contest over parental rights.²⁷ The potential for a successful claim by the surrogate is higher in traditional surrogacy because the child is genetically related to the surrogate mother, who could assert a claim of parental rights to the child "[i]f for some reason [she] decide[s] not to honor her commitment to give the baby to the intended parents after birth."²⁸ In cases like these, courts have greater difficulty justifying termination of a surrogate mother's parental rights based on a contract because the baby is genetically related to both an intended parent and the surrogate.²⁹ Gestational surrogacy, however, allows courts to more freely and easily grant full parental rights to the intended parents in the agreement due to the lack of a genetic link between the surrogate mother and the baby.³⁰

Most intended parents prefer not to risk a legal battle over parentage, however unlikely one may be. Choosing gestational

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surrogacy can mitigate this risk.³¹ When parents choose this route, "the lack of a biological connection between the surrogate and the child strengthens the intended parents' claim to custody."³² In addition to creating greater legal security, gestational surrogacy creates emotional and psychological distance between the surrogate mother and the child she carries because she knows it is not her genetically-related child.³³ Therefore, many view gestational surrogacy as being more emotionally and legally secure, and if utilized, the outcome of a legal battle over custody is more likely to honor the intention the parties possessed when they entered into the agreement.

B. WHY IS SURROGACY SO CONTESTED?

When couples contemplate entering surrogacy arrangements, they are not just contemplating another every-day contract but instead a contract that involves a host of legal and highly charged emotional issues. Almost every argument concerning surrogacy references the infamous American case of Baby M from 1985.³⁴ The case involved every intended parent's nightmare: the surrogate mother sought to keep the baby. What made the story more newsworthy, however, was that the surrogate mother and her husband fled New Jersey to Florida with Baby M, inciting a legal battle for...