Establishing and rebutting maternity: why women are at a loss despite the advent of genetic testing.

• Author: De Vito, Amanda E.
• Position: New York

1. INTRODUCTION

   Surrogacy is an age old practice, dating to Biblical times. (1) Some scholars believe that surrogate motherhood pre-existed the famous story of Sarah and Abraham--Sarah, being barren, offered her handmaiden, Hager, to Abraham to act as a surrogate. (2) This surrogacy arrangement resulted in the conception and birth of Sarah and Abraham's first child, Ishmael. (3) Their story was merely the first to be recorded and known worldwide as a result of the Bible. (4) History has demonstrated the illustrious uses for surrogacy--most significantly, as a means of carrying on a family name or legacy. Yet, thousands of years later, society is still perplexed by the legitimacy and ethics accompanying surrogacy arrangements. Through assisted reproductive technology ("ART"), the possibility of bearing children composed of one's own genetic material has served as a catalyst for driving more infertile couples towards surrogacy.

   Access to new reproductive technologies can sometimes lead to exploitation. The commoditization of reproductive materials and services has created what is known as the "baby market," and some might say that the highly efficient development of the infertility industry "fits well within America's capitalistic norms." (5) Coupled with America's capitalistic society is the world of the "celebrity," or, Hollywood. In recent years commercial surrogacy has become openly known and used within the entertainment industry, therefore making the practice more publicized in the wake of our country's obsession and need for emulation of celebrity lifestyle. (6) Some examples include Kelsey Grammar, former star of Frazier, actress Sharon Stone, Good Morning America host Joan Lunden, and most recently, Sex and the City star Sarah Jessica Parker. (7) The significance of pop culture's acceptance and use of surrogacy is that it does not always reflect surrogacy arrangements as they exist for the non-celebrity family. While the above named celebrities did not encounter any serious litigation questioning their parental rights to the resulting child, surrogacy arrangements often times fail to manifest in the way they were originally intended, subsequently leaving the families involved distraught and unhappy.

   New York law has not been updated to reflect the most current medical abilities in assisted reproductive technology--specifically, surrogacy. Traditional surrogacy is very much a practice of the past and essentially all of the legislative intent surrounding surrogacy law was created to implement safeguards protecting the surrogate who has a legitimate genetic claim to the child. The more common usage of surrogacy, in 2011, is as a gestational carrier. The law does not differentiate between the two (gestational and traditional), however,

   [a] narrowing construction of [the statute] that would limit its application to surrogate birth mothers who have contributed their own genetics to the conception of the child would obviate the application of the statutory presumption to cases of true gestational surrogacy ... and avoid any conflict with the fundamental rights of genetic/biological parents.... (8) This Note claims that there is a fundamental flaw in New York legislation when applied to "compassionate" or gestational surrogacy. (9) New York Domestic Relations Law section 122 declares all surrogate parenting contracts void and unenforceable for public policy reasons. (10) As a result, the woman who gives birth is the presumed legal mother of the child, even if she is not biologically/genetically related to it. Biological/intended fathers who are parties to the surrogacy arrangements can assert parental rights by simply providing proof of the genetic connection. (11) Intended mothers and surrogates have no such rights in declaring or rebutting their parental status. Article Five of the New York Family Court Act only provides a mechanism for paternal declaration. (12) This infirmity creates a problem for the issuance of the child's birth certificate in compassionate surrogacy situations. All parties to the arrangement (compassionate surrogate, compassionate surrogate's husband, genetic/intended mother, genetic/intended father) agree that the genetic/intended parents should be listed on the child's original birth certificate. However, the New York State Department of Health and Mental Hygiene ("DOHMH") will only agree to put the father's name on the certificate and will not list the intended mother as "mother" on the birth certificate. (13) Instead, the DOHMH will issue the birth certificate with the surrogate listed as the child's "mother." (14) The Family Court Act provides a quick and easy mechanism for a genetic father to be declared the legal father of the child but fails to offer the same solution for women. (15) The statutory framework established for dealing with cases of gestational surrogacy results in a violation of Due Process and Equal Protection for both the intended mother and the surrogate.

   Compassionate Surrogates are not solicited on the promise of money, but are instead compassionate carriers, or, uncompensated carriers. (16) A compassionate carrier is usually a friend or relative that agrees to carry the embryo, created from the intended parent's genetic material, for no fee and under no contractual obligation. Once the baby is born, the carrier voluntarily relinquishes her rights as "mother" and the intended parents should be deemed the child's legal parents. (17) This situation has encountered numerous variations in how state courts rule and, in a state such as New York where surrogate parenting contracts are held to be void and unenforceable, the judicial precedent is even more inconsistent. (18) However, what is consistent is the discriminatory nature of New York law towards claims of maternity. Intended mothers whose genetic material created the child are not provided an effective mechanism allowing them to be declared the child's legal mother. Establishment of paternity is quite simple--the biological father merely has to take a paternity test. (19) However, for a woman, her only viable and efficient option is to adopt the child--an imperfect solution at best. If both men and women are similarly situated in situations using assisted reproductive technologies, then why does New York have a statute allowing men to be declared the legal father and not women? New York law is outdated and intended mothers who find themselves caught in the trenches of litigation do, in fact, have valid claims to Due Process and Equal Protection violations. This Note focuses on the purest and most noncommercial form of gestational surrogacy in which no money is exchanged, no contract is followed, and there are no third party claims to any of the child's genetic makeup.

   This Note proceeds in five parts. Part one describes the background information needed to understand the intricacies of surrogacy arrangements and the current legal status of surrogacy throughout the country. Part two focuses directly on New York, and the statutory framework effecting gestational surrogacy arrangements. Part three establishes the legal framework of surrogacy and works through a constitutional analysis of procreation and privacy interests. Part four focuses on assisted reproductive technology and whether or not one has a fundamental right to access such services. Lastly, part five argues that the flaws plaguing New York's legislation surrounding gestational surrogacy parenting arrangements should be resolved through implementation of newer, up to date, non-discriminatory laws for declaring parental status in gestational surrogacy arrangements. To the extent that the New York statute conclusively presumes the gestational surrogate to be the legal mother of the child, Domestic Relations Law section 122 violates both the intended mother's and gestational surrogate's fundamental rights to both exercise and avoid procreation guaranteed by both the United States and New York State Constitutions.

2. BACKGROUND

   Surrogacy has both medical and legal components. In order to adequately discuss the legal implications resulting from such an arrangement, one must first understand the physical logistics of surrogacy and what it truly means to be a parent. Additionally, to analyze the reproductive situation this Note focuses on, traditional and gestational surrogacy must be distinguished.

   1. What It Means to Be a Parent

      The issue of parental rights has produced some of the most perplexing questions when it comes to surrogacy. Medical technology allows us "to separate the genetic, gestational, and social components of motherhood successfully." (20) However; society has yet to set a precedent for the legal, moral, and social implications that result from such new technologies. (21) Now that biology is no longer the predetermining factor of motherhood, society is faced with confronting the distinction between biological and social motherhood. A social mother is one who is not biologically related to the child, and this relationship is most commonly found through adoption or foster parenting. (22) The meaning of biological motherhood must also now be made clear because new technologies are able to separate the genetic and gestational elements of surrogacy. (23) Legal precedent for gestational surrogacy was established in the California Supreme Court Decision of Johnson v. Calvert. (24) The court decided in this case that the intended parents were in fact the legal parents of the child and followed the contractual agreement entered into by all the parties. (25)

      Structuring surrogacy legislation or regulation can become difficult when establishing parental rights are so deeply intertwined with biology. While not all surrogacy arrangements are identical, usually, "there are at least two unrelated people making parental claims, and in gestational surrogacy, there are three people who have made biological contributions to the child. However...