17 Cardozo Law Review 497 (1996)

17 Cardozo Law Review 497 (1996)

GESTATION, INTENT, AND THE SEED: DEFINING MOTHERHOOD IN THE ERA OF

ASSISTED HUMAN REPRODUCTION

Malina Coleman

. . .

C. Determining Legal Motherhood: The Emergence of Three Tests

As courts, legislatures, and commentators sort out the issues, three tests emerge for determining legal motherhood in the context of gestational surrogacy: tests based on intent, on genetic contribution, and on gestation.

1. The Intent-based Test

Courts willing to determine legal motherhood according to the intent-based test have focused on the preconception manifestation of assent of the women involved to use their reproductive functions for a common purpose. The intent rule treats the interests of the genetic mother and the gestational mother as equally worthy of protection; it allows the parties' pre-conception manifestation of assent to the same purpose to be the decisive factor. This approach originated in Johnson v. Calvert, the first case in which a court confronted the issue of what determined legal motherhood at birth. In that case, the court addressed the question of who was the legal mother of a child born as a result of gestational surrogacy. [discussion of Johnson omitted]

George Annas, a leading commentator in the field of assisted human reproduction, has strongly criticized the reasoning of the majority in Johnson v. Calvert:

[The Johnson] opinion contributes little to the resolution of whether the genetic or the gestational mother should be considered the legal mother of a child. Calling the genetic mother the "natural" mother simply begs the question; it does not answer it. The court's equation of paternity testing with maternity testing is, of course, correct if one is trying to determine who the genetic parent is, but in this case that was never an issue. In human reproduction men contribute only genes; women contribute both genes and gestation. The question is what rules society should adopt now that these maternal contributions can be separated.

Annas also argues that the court in Johnson went beyond ignoring the claims of the gestational mother: "They have taken part in exploiting her. As in virtually all surrogate-motherhood arrangements, Ms. Johnson was poor and needed the $10,000 fee literally to pay her rent. Poor women will probably continue to be used by middle-class couples to perform this 'service' for them."

As the dissent in Johnson argued, the intent-based analysis used in Johnson and McDonald is essentially a contract analysis, but with a troubling twist. The rule focuses exclusively on intent without an analysis of procedural and substantive fairness that allegations of gross unfairness usually prompt. The intent manifested by the preconception promise is the sole determinant.

This intent-based analysis, which is structured around a contracts paradigm, is thus inconsistent with contract principles which permit an inquiry into gross unfairness in determining whether promises must be kept. In contract law, to avoid an unconscionable result, a court may choose to reform or not enforce the unconscionable provision of an agreement or it may not enforce the entire agreement.

Using traditional contract criteria to determine the existence of procedural and substantive unconscionability, one might find indicia of both kinds of unconscionability in many surrogacy agreements. Susan Ince investigated the surrogacy business undercover as a prospective surrogate and presented a disturbing account of the experience in her article Inside the Surrogacy Industry. She portrayed the industry as serving largely its own interest and the interests of the prospective parents, to the great disadvantage of the young women providing the reproductive services. Ince writes:

After I was deemed ready to "enter the fold," I inquired about the independent legal consultation. There had been problems with that, the director [of the infertility clinic] said. Some of the "girls" had submitted bills up to $500 for legal fees, which program members thought was exorbitant. Of even greater concern, surrogates had come back from their consultation with new doubts and questions. Because of this, I was strongly encouraged to see a nearby lawyer "not associated" with the program, but already familiar with the contract, and selected and paid by the company to provide 'independent' consultations to all of the surrogates. When I said that I had my own lawyer in mind, she reiterated strenuously that she advised against it. As an example, she said, one girl had come back to her from an outside lawyer, saying "He's asking me all these questions and he's really driving me crazy." The director said, "and after I sent her to see our lawyer, and he explained it our way, she felt much better and thanked me."

In addition, each party was required to sign a "hold harmless" clause stating that the infertility clinic would not be liable should any problems with the agreement arise. When Ince asked about the meaning of the clause, the lawyer representing the interests of the infertility clinic stated that the clause was "meaningless." If the typical surrogacy agreement is the result of such bargaining abuses, one could make a strong case for procedural unconscionability.

As for substantive unconscionability, one provision required the surrogate to use the medical and psychological services chosen and provided by the program. The surrogate was further required to follow the advice of the attending physician, even if it meant undergoing major surgery such as a caesarean delivery.This had not even been mentioned in the agreement. Perhaps the most outrageous provision was the one which read: "Surrogate mother and her husband must sign all documents provided by the (company) including but not limited to the surrogate mother agreement and contract." This meant that the surrogate could be required to sign any document presented by the surrogacy company, regardless of how it could affect the surrogate's own interests.

Another indication of substantive unconscionability is the average fee for surrogacy services--approximately ten thousand dollars. That is less than two dollars per hour for a job that was described by an infertility clinic representative as "not a nine-to-five job. [Rather, it is one that] demands enormous commitment and understanding . . . requir[ing] total thought and consciousness, full-time, twenty-four hours a day."

If Ince accurately described the customary surrogacy agreement process and the typical agreement's substance, an analytical framework is necessary to protect against overreaching in the surrogacy agreement process.

2. The Genetic Contribution Test

The genetic contribution test determines parenthood based on the genetic relationship between the child and the person who contributed genetic material. The reasoning of the court in Belsito v. Clark, which applied a genetics test, leads to the same troubling result seen in the Johnson ruling--an inflexible rule based on the genetic mother's intentions at the time of the use of assisted conception. In Belsito, Shelly Belsito and her sister Carol Clark entered into a gestational surrogacy agreement whereby Carol would gestate the fertilized genetic material from Shelly and her husband, Anthony. Prior to the child's birth, the hospital informed Shelly that Ohio law required that Carol's name be listed as the legal mother on the birth certificate.

The Belsitos then sought a declaratory judgment finding that they were the natural and legal parents of the resulting child. Significantly, the gestational surrogate, Carol Clark, never sought parental rights. In a brief opinion, the Probate Court of Summit County held that Shelly Belsito was the mother. The court's rationale was simple. Since Shelly Belsito provided the genetic material for the child, she was the child's natural and legal mother. The Belsito court, in dictum, rejected the intent-based test that the Johnson and McDonald courts used because it raised the specter of "surrender[ing] . . . parental rights by agreement," and of permitting the circumvention of established adoption laws. The Belsito court also argued that the intent-based test failed to protect the rights of the genetic parents "to choose or to consent." The court stated that the intent-based test "subordinat[es] the consent of the genetic-providing individual to the intent to procreate of the surrogate who intends to keep and raise the child."

The cornerstone of the Belsito court's decision protecting genetic mothers is the guarantee that such mothers retain the right to "choose or to consent" to the use of their genetic material. The court viewed the Johnson intent-based test as interfering with the genetic mother's exercise of that right, stating that "[t]he procreation of a child, that is, the replication of the unique genes of an individual, should occur only with the consent of that individual." This is a curious statement, since the circumstances surrounding the use of genetic material generally show the parties' consent. In both gestational surrogacy cases involving the question of legal motherhood, the two women sharing reproductive functions knew of each other's intentions in using assisted conception and they entered into preconception agreements in accordance with those intentions. Even when there is no express agreement between the genetic provider and the intended parent, courts can infer intent to donate and to allow someone else to have the status of parent from the act of donation of genetic material for use in treating infertility, such as in the case of ovum donation and artificial insemination.

The court's language in Belsito suggests that its judicial perspective was influenced by the parties' intent when they agreed to undergo the medical procedure resulting in the gestational mother's pregnancy. The court's logic is thus internally inconsistent. Although claiming to focus exclusively on genetic contribution, the court views the issue from the perspective of the parties' preconception intent. After determining that the genetic mother intended to nurture the child created from her genetic material and gestated by her sister, the court decided that the genetic mother was the legal mother of the child. It seems unavoidable to conclude that intent played a central role in the court's decision.

b. Defining Mothers by Fathers

The emphasis on genetic contribution also may reflect a problematic, male paradigm of parenthood--one which devalues the contribution of gestation. The weight the Belsito court gives to genetic contribution arguably stems from the major premise that the defining feature of parenthood is genetic contribution, the only biological feature of parenthood that women and men share. This paradigm ignores the fact that women alone contribute another essential function special to reproduction--namely, gestation. Gestation has defined women as mothers since time immemorial. Although current technology allows the separation between gestation and genetic contribution, it does not follow that gestation is now a less important part of parenthood.

One commentator argues that the focus on genetic contribution in defining parental rights enforces a system of patriarchy that ultimately devalues women in their own right:

The old patriarchal kinship system had a clear place for women: they were the nurturers of men's seeds, the soil in which seeds grew, the daughters who bore men offspring. When forced to acknowledge that a woman's genetic contribution is equal to a man's, Western patriarchy was in trouble. But the central concept of patriarchy, the importance of the seed, was retained by extending the concept to women.

. . . .

. . . [B]y maintaining the centrality of the seed, the ideology maintains the rights of men in their children, even as it recognizes something approaching equal rights of women in their children. . . . Women do not gain their rights to their children in this society as mothers, but as father equivalents, as equivalent sources of seed.

Thus, when Western culture finally valued the reproductive contributions of women, it effectively established a modified system of paternity rights based on the older ideology of patriarchy. Such a system is structured to devalue the contribution of gestation.

The premise of the Belsito court's decision that genetic contribution is the critical factor in determining parental rights is also disputable. Although it is undeniable that the genetic relationship between mother and child is important, recent Supreme Court decisions have challenged the notion that the genetic relationship is the sine qua non of parenthood. Several cases, beginning with Stanley v. Illinois, together suggest that genetic contribution is not necessary for parental rights and conversely, that genetic contribution alone does not necessarily make one a parent in a legal sense.

[discussion of earlier unwed father cases – Stanley, Quilloin, Caban – omitted]

Lehr v. Robertson also stands for the proposition that parental rights are based on something more than a mere biological or genetic link. Over a strong dissent, the Lehr Court held that the mere existence of a biological relationship does not necessarily give a biological parent the full panoply of parental rights. The appellant, 1 Lehr, had not established a relationship with his biological child in over two years since her birth, nor had he supported her financially.

In perhaps the most controversial portion of the decision, Justice Stevens wrote for the majority that "the mere existence of a biological link does not merit equivalent constitutional protection" as would be afforded to a father who has established a relationship with his child.

Michael H. v. Gerald D. also supports the proposition that genetic contribution alone does not necessarily establish legal parenthood.The Supreme Court affirmed [a judgment against the genetic father] with a plurality opinion authored by Justice Scalia. The opinion rejected Michael's central argument that because he was Victoria's biological father, he had a constitutionally-protected interest in a parental relationship with his daughter that was entitled to due process protection.