Surrogate Motherhood: The Legal and Human Issues, Expanded Edition / Edition 2

by Martha A. Field

Overview

With an Expanded Appendix on the Current Legal Status of Surrogacy Arrangements

A practice known since Biblical times, surrogate motherhood has only recently leaped to prominence as a way of providing babies for childless couples—and leaped to notoriety through the dramatic case of Baby M. Contract surrogacy is officially little more than ten years old, but by 1986 five hundred babies had been born to mothers who gave them up to sperm donor fathers for a fee, and the practice is growing rapidly. Martha Field examines the myriad legal complexities that today enmesh surrogate motherhood, and also looks beyond existing legal rules to ask what society wants from surrogacy.

A man’s desire to be a “biological” parent even when his wife is infertile—the father’s wife usually adopts the child—has led to this new kind of family, and modern technology could further extend surrogacy’s appeal by making gestational surrogates available to couples who provide both egg and sperm. But is surrogacy a form of babyselling? Is the practice a private matter covered by contract law, or does adoption law govern? Is it good or bad social and public policy to leave surrogacy unregulated? Should the law allow, encourage, discourage, or prohibit surrogate motherhood? Ultimately the answers will depend on what the American public wants.

In the difficult process of sorting out such vexing questions, Martha Field has written a landmark book. Showing that the problem is rather too much applicable law than too little, she discusses contract law and constitutional law, custody and adoption law, and the rights of biological fathers as well as the laws governing sperm donation. Competing values are involved all along the legal and social spectrum. Field suggests that a federal prohibition would be most effective if banning surrogacy is the aim, but federal prohibition might not be chosen for a variety of reasons: a preference for regulating surrogacy instead of driving it underground; a preference for allowing regulation and variation by state; or a respect for the interests of people who want to enter surrogacy arrangements. Since the law can support a wide variety of positions, Field offers one that seems best to reconcile the competing values at stake. Whether or not paid surrogacy is made illegal, she suggests that a surrogate mother retain the option of abiding by or canceling the contract up to the time she freely gives the child to the adopting couple. And if she cancels the contract, she should be entitled to custody without having to prove in court that she would be a better parent than the father.

Product Details

ISBN-13:	9780674857490
Publisher:	Harvard University Press
Publication date:	10/01/1990
Edition description:	Enlarged Edition
Pages:	227
Product dimensions:	6.12(w) x 9.25(h) x 0.70(d)

About the Author

Martha A. Field is Langdell Professor of Law at Harvard University.

Table of Contents

Introduction

Part I Surrogacy Contracts

One: Are the Contracts Illegal?

Two: Exploiting Women and Commercializing Childbearing

Three: Do New Reproductive Techniques Threaten the Family?

Four: Constitutional Arguments-For and Against

Five: Making Surrogacy Contracts Unenforceable under Contract Law

Six: Integrating Surrogacy with Laws Governing Adoption

Seven: Giving the Mother the Right to Renounce the Contract

Part II Custody Contests Independent of the Surrogacy Contract

Eight: Rules Affecting Biological Parents' Claims to Children

Nine: Custody Contests to Determine the Better Parent

Conclusion

Appendix: The Current Legal Status of Surrogacy Arrangements

Notes

Selected Bibliography

Index

Editorial Reviews

If you want a clear, comprehensive overview of the legal status of surrogate motherhood in the United States (and the world) today, together with a calm discussion of all the moral and practical pros and cons, this book is the one to read. In direct, lucid prose, free of legal jargon, Field applies the classic legal analysis to this new variation on the human propensity for disorderly conduct… Acknowledging that ‘surrogacy for hire is probably with us for the long term,’ she proposes an eminently sensible set of guidelines to contain it and avoid what is, to a lawyer, the worst-case scenario: a situation in which people are unclear as to their rights.

Women’s Review of Books - Deborah Solomon

A lucid and compelling analysis of the plethora of legal problems posed by surrogacy and the social implications of those problems… [It] should be read by anyone concerned with the legal and ethical implications of the reproductive revolution… [It is] one of the best books yet written about the legal implications of surrogacy in the United States and deserves a wide audience.

Times Higher Education Supplement - Margaret Brazier

Martha Field steps onto this ideological and emotional minefield armed with the flexibility and pragmatism of the accepted tools of legal analysis. Whether deflating an overblown argument by surrogacy advocates or skewering an underdeveloped one by surrogacy opponents, she never loses her cool assurance that a ‘sensible’ approach can be crafted to avoid most surrogate exploitation as well as most paternal disappointments.

Harvard Law Bulletin - Christine A. Littleton

An important contribution to clear thinking on this contentious issue. The book reflects a sophisticated understanding of several complex areas of the law, psychology, and social science… Professor Field does a marvelous job of integrating compelling human stories with intelligent discussion of difficult conceptual issues. Most important, the book asks the right questions, tells the reader the range of reasonable and constitutional answers to them, as well as offering the author’s own views on which approaches make most sense.

Sylvia A. Law

An important contribution to clear thinking on this contentious issue. The book reflects a sophisticated understanding of several complex areas of the law, psychology, and social science... Professor Field does a marvelous job of integrating compelling human stories with intelligent discussion of difficult conceptual issues. Most important, the book asks the right questions, tells the reader the range of reasonable and constitutional answers to them, as well as offering the author's own views on which approaches make most sense.
— Sylvia A. Law

New York University

An important contribution to clear thinking on this contentious issue. The book reflects a sophisticated understanding of several complex areas of the law, psychology, and social science... Professor Field does a marvelous job of integrating compelling human stories with intelligent discussion of difficult conceptual issues. Most important, the book asks the right questions, tells the reader the range of reasonable and constitutional answers to them, as well as offering the author's own views on which approaches make most sense.

New York University - Sylvia A. Law

An important contribution to clear thinking on this contentious issue. The book reflects a sophisticated understanding of several complex areas of the law, psychology, and social science... Professor Field does a marvelous job of integrating compelling human stories with intelligent discussion of difficult conceptual issues. Most important, the book asks the right questions, tells the reader the range of reasonable and constitutional answers to them, as well as offering the author's own views on which approaches make most sense.
— Sylvia A. Law

New York University

Of the many titles in the wake of the Baby M surrogate mother lawsuit, this one by Harvard law professor Field provides a particularly clear and comprehensive overview of the subject. Among the topics she discusses are federal regulation of surrogacy, the rights of biological fathers, and custody and adoption law. Throughout, she considers the pros and cons of potential legal and fairness arguments, some of which apply to the newest fertility technologies, including extracorporeal embryos. Field concludes that surrogacy contracts should be legal, but unenforceable if the birth mother objects. The appendix, which gives the legal status of surrogacy throughout the country, is most useful. Janice Dunham, John Jay Coll. Lib., New York

Library Journal

Field sorts out the legal issues involved in the surrogate motherhood debate so that a layperson can understand them. Since the first edition of 1988 (Harvard U. Press), several states and foreign countries have enacted laws to deal with surrogacy, and the updated appendix reflects those changes and provides an analysis of how surrogacy law is actually developing. Annotation c. Book News, Inc., Portland, OR (booknews.com)

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