The Future of Compensated Surrogacy in Washington State: Anytime Soon?

• Jurisdiction: Washington,United States
• Citation: Vol. 89 No. 4
• Publication year: 2021

THE FUTURE OF COMPENSATED SURROGACY IN WASHINGTON STATE: ANYTIME SOON?

Terry J. Price(fn*)

Abstract: Americans in the mid-1980s were shocked by the facts of the Baby M case. That case, a compensated surrogacy arrangement that publicly went very wrong, raised complicated issues that the country had not considered: whether a woman could contract to carry a pregnancy for another person without becoming the legal mother; whether she could be separated from the child at birth, even though it was her genetic offspring; and whether the contract could take precedence over a mother's regret over giving up the child. As a result of that case, a number of states, including Washington, prohibited compensated surrogacy arrangements.

Twenty-five years later, the fundamental nature of families has changed. In the process, the public has gradually accepted surrogacy as an option for families with infertility issues. Gestational surrogacy, where the surrogate is not genetically related to the embryo, has become more the norm. Without the genetic link to the embryo, the concept of “mother giving up child” does not ring the same, either legally or morally. Also, while sperm-banking has been available for decades, increasingly infertile couples rely on egg banks to assist them with their infertility issues, without entangling them in personal relationships with the donors. In this climate, and specifically as some state legislators experience surrogacy firsthand, state legislatures have begun reassessing their surrogacy prohibitions. The Washington Legislature undertook such a reassessment in 2011. This paper will discuss the facts of the Baby M case, the enactment of the 1989 compensated surrogacy prohibitions in Washington and the 2011 attempt to reverse them, and some thoughts for future legislation in this arena.

INTRODUCTION

In 1978, the world became familiar with the concept of in vitro fertilization when the first family using that procedure successfully had a baby.(fn1) Less than ten years later, in March 1986, Americans would become familiar with another newborn baby that would change their view of “motherhood.” Baby “M,” as she was called in the courts and media, was born as a result of a compensated surrogacy arrangement. To have a baby born via surrogacy contract was a foreign enough concept. But to have a mother who contributed her genetic material-her egg- and gave birth but did not keep the baby, were startling concepts to the American public. This propelled much soul-searching on the part of the public and its elected officials.

Nearly thirty years later, no consensus exists on surrogacy. Most countries, including most of the European Union, ban compensated surrogacy.(fn2) A handful of countries, such as India, Thailand, Ukraine, and Mexico, allow for the practice.(fn3) The United States has no comprehensive policy about surrogacy, but rather a patchwork of laws that vary widely state-by-state. Some are “surrogacy-friendly”; others are “surrogacy-hostile.”(fn4) This lack of cohesive policy often confuses and sometimes traps the individuals and couples who just want a baby.

The State of Washington currently bans compensated surrogacy. Part I of this Article will briefly examine the Baby M case, which caused the various states to address surrogacy, including Washington. Part II will detail the events in the Washington State Legislature that led to enacting the existing surrogacy prohibitions in 1989. Part III will focus on the unsuccessful 2011 attempt to reverse Washington State's surrogacy ban. Part IV will conclude with an eye toward answering the question: Will Washington State be able to pass compensated surrogacy legislation anytime soon?

I. BABY M CASE REVEALS INSUFFICIENCY IN LAW, BEGINS NATIONAL DEBATE OVER COMPENSATED SURROGACY

The facts of the Baby M (fn5) case were initially straightforward. William Stern and Mary Beth Whitehead formed a surrogacy contract in February 1985.(fn6) Mr. Stern provided the sperm.(fn7) Mrs. Whitehead agreed to get pregnant using her own egg, carry the child, and, after delivery, give it to the Sterns.(fn8) The contract called for her to have her parental rights terminated, and in exchange, she would receive $10,000 after the child's delivery.(fn9) Mrs. Stern would then adopt the child.(fn10)

Despite its appearance in hindsight, the parties at the time entered into the arrangement in good faith, albeit with their own motivations.(fn11) Mrs. Stern had multiple sclerosis, and was afraid that pregnancy would bring serious medical consequences.(fn12) Mr. Stern was a Holocaust survivor, and very much wanted a child to continue his lineage.(fn13) Mrs. Whitehead agreed to participate in part because of sympathy with family members who could not have children, and also because of the money it would bring.(fn14) Apparently, however, the parties did not focus on the implications for the other side.Mrs. Whitehead . . . appears not to have been concerned about whether the Sterns would make good parents for her child; the Sterns, on their part, while conscious of the obvious possibility that surrendering the child might cause grief to Mrs. Whitehead, overcame their qualms because of their desire for a child.(fn15) The pregnancy was unremarkable, and a baby girl was born on March 27, 1986.(fn16) The birth certificate listed the Whiteheads, not the Sterns, as the parents for the girl they named Sara.(fn17) The Sterns later named the child Melissa.(fn18)

Mrs. Whitehead realized quickly after delivery that she was quite attached to the baby girl and could not give her up to the Sterns.(fn19) This set in motion a four-month, multi-state odyssey about disputed parenthood. The Whiteheads fled with the baby to Florida, living in different homes, hotels and motels in order to avoid being found.(fn20) Periodically, Mr. Stern and Mrs. Whitehead would talk on the phone. “[T]he conversations, recorded by Mr. Stern on advice of counsel, show an escalating dispute about rights, morality, and power, accompanied by threats of Mrs. Whitehead to kill herself, to kill the child, and to falsely accuse Mr. Stern of sexually molesting Mrs. Whitehead's other daughter.”(fn21)

Once her location was ascertained, extensive legal proceedings began to require Mrs. Whitehead to return the child to the Sterns.(fn22) In the meantime, the public policy debate about surrogacy raged in the national press, in part fueled by Mrs. Whitehead. Articles appeared, ranging from the expected: “Should a Surrogate Be Able to Change Her Mind and Keep Her Baby,”(fn23) “Surrogate Motherhood [sic] Something that Science Has Created and We Do Not Need,”(fn24) “Participants in Surrogate Motherhood Have Stumped America's Legal, Social, Religious, and Political Establishments with a Sensitive Question: Whose Child Is This?”(fn25) and “Law and Morality in ‘Baby M' Case;”(fn26) to the more outrageous, “Feminists Fear a Brave New (Third) World Ominous Prediction: Mexican Baby Farms.”(fn27) Even Mrs. Whitehead published her side of the story in People Magazine, “A Surrogate Mother Describes Her Change of Heart-and Her Fight to Keep the Baby Two Families Love.”(fn28)

The trial, which began in January 1987, lasted six weeks and included twenty-three fact witnesses and fifteen experts.(fn29) The trial court ultimately found for the Sterns. Specifically, and remarkably, the trial court ordered that the surrogate parenting agreement should be enforced.(fn30) Consequently, Mrs. Whitehead was awarded the $10,000 in the court registry for her part of the contract.(fn31) As for custody, the court determined: Mrs. Whitehead is manipulative, impulsive and exploitive. . . . She is a woman without empathy. She expresses none for her husband's problems with alcohol and her infusion of her other children into this process, exposing them rather than protecting them from the searing scrutiny of the media, mitigates against her claim for custody. . . . She would not be a good custodian for Baby M.(fn32) In contrast, the court found by clear and convincing evidence that Melissa's best interests would be served by placing her in her father's sole custody.(fn33) Mr. Stern was made the legal parent, and Mrs. Whitehead's parental rights were terminated.(fn34)

Not surprisingly for such a ground-breaking matter, the case was appealed to the New Jersey Supreme Court. To say that the justices were appalled with enforcement of the contract would be an understatement. Pointedly, the majority wrote, “There are, in a civilized society, some things that money cannot buy.”(fn35) Not only did the Court hold that this was contrary to New Jersey public policy,(fn36) it also held that this arrangement violated the statutory prohibitions against accepting money for placement of children, which the Court referred to as “baby-bartering” and “baby-selling.”(fn37) It noted, “Almost every evil that prompted the prohibition on the payment of money in connection with adoptions exists here.”(fn38)

Because the Court invalidated the surrogacy contract, termination of Mrs. Whitehead's parental rights was naturally reversed.(fn39) However, based on the robust trial court record concerning custody, it upheld the custody determination for the Sterns.(fn40) It remanded the case for a determination of visitation available for Mrs. Whitehead.(fn41)

The fallout from this case was remarkable. It was a media sensation at the time, and brought to light for the first...