Iowa Law Review

May, 1987

Prepared by Students at the Iowa Law School

72 Iowa L. Rev. 943 (1987)

Jeffrey Abbas, Linda Bendorf, Elizabeth Gomez, Lon Moeller, Wendy Smith,

Jeffrey Aldag, Scott Fisher, Jeanne M. Higuera, Linda Mullen, Gregory Steele,

Rachelle Ziemba, Thomas Barnhart, Randal Giannetto, Michael Kuehn, Marie

Simpson, Mary Wyckoff

Copyright 1987 by the University of Iowa (Iowa Law Review)

The Model Human Reproductive Technologies and Surrogacy Act is the product of a seminar offered during the 1986-87 academic year at the University of Iowa College of Law, entitled 'The Status of Children of the New Biology Drafting Seminar.' This brief foreword provides background information on the seminar and the Model Act that resulted from it. The Act, published in full with comments, follows.

The seminar was an unusual educational experience for students. The concept of the seminar emerged from our experience with drafting committees and our belief that this experience could be replicated in the law school to the students' educational enrichment. Its success required that each student be actively involved in research supporting the proposed statute, that each student bear principal responsibility for drafting portions of the statute, and that the processes of policy formulation, discussion, review, and editing be widely shared among the class.

The subject matter of the seminar was well suited to the type of research and drafting experience we intended to achieve. As originally defined, the seminar focused on the status of children born through recent, largely technological means of reproduction, including artificial insemination, in vitro fertilization, and surrogacy--three separate but overlapping areas of reproductive technology.

These three general areas of concern spawned a range of issues broad enough to occupy a year-long seminar with sixteen students. The general areas spanned the fields of law, economics, religion, ethics, psychology, medicine, genetics, political science, philosophy, and others. Of the sixteen law students who enrolled in the seminar, we were fortunate to have students with a broad array of undergraduate and graduate training, as well as work experience. Among the students in the seminar were persons with experience or training in psychology, nursing, medicine, genetics, social work, ethics, economics, political science, and, not the least important, parenting.

The seminar met twice in the early fall of 1986 to set the ground rules, to obtain basic information about the reproductive procedures, and to set the agenda for early research. The ground rules were fairly straightforward: each student would be assigned an initial area of research responsibility and the students would thereafter set the scope of the undertaking, identify and decide upon all policy decisions, prepare a first draft of the statute, and serve as reporters as the statute was refined. Doctor Susan Johnson from the University of Iowa medical faculty provided the students with basic information in the medical and technological aspects of conception, fetal development, and genetics, as well as in the present and conceivable future procedures for assisted reproduction.

After the initial meeting, each student was assigned an area on which to prepare a substantial research memorandum. In late fall, after the memoranda were completed, the seminar met to decide the basic policy issues that would structure the statute and to hammer out its scope. This effort took five meetings, ranging in length from five hours to all day, and was completed by the end of the first semester. All this time, each student had been assigned an additional research paper and the responsibility for drafting a portion of the Act.

The students completed this work by the beginning of the second semester, after which the seminar settled into a routine of meeting roughly once each week. Initially, the students reviewed, reshaped, and coordinated the sixteen different, but interrelated, sections of the Act they had prepared over the holidays. Once they developed a basic set of provisions resembling a statute, the students undertook a section-by-section review to confirm, revise, or reverse basic policy judgments, to coordinate further the operation of the statute, to identify terms needing definition, and to begin drafting explanatory comments. Finally, line-by-line readings were undertaken to develop a first draft for public hearings.

By early March, the students completed a draft of the Act that could be distributed for comment. At this point, a process of external review and testing began. Copies of the draft were sent for comment to a wide array of potentially interested parties, including physicians, nurses, psychologists, social workers, judges, social service agencies, parenting support groups, hospitals, attorneys, clergy, right-to-life organizations, feminist organizations, and others. The seminar also met with a surrogate to hear her experiences and point of view concerning the Act's surrogacy provisions. Finally, the students held a formal public hearing, inviting fourteen persons to testify on the Act.

Following this external review process, the seminar met regularly to finalize policy and language revisions and to complete and review the comments to the Act. These repeated line-by-line, painstaking reviews produced a first final draft in early April. After yet another review, the iterative process was complete, and the students submitted the Model Act to the Iowa Law Review for publication.

The Act itself regulates insemination, in vitro fertilization, and surrogacy arrangements. Articles 4 and 5 govern insemination and in vitro fertilization respectively. Both articles permit use of these reproductive technologies only if certain safeguards, designed to promote the best interests of the child, are met.

Surrogacy arrangements are regulated primarily by Article 6. The surrogacy provisions were perhaps the most difficult to formulate and will likely be controversial. The Act allows surrogacy only according to strict eligibility and procedural requirements. To be eligible for a surrogacy, the couple intending to parent the resulting child must be married, the intended mother must be unable to bear children safely, and one of the couple must provide a gamete for the resulting child. Further, no woman can be a surrogate unless she has had at least one uncomplicated pregnancy.

The procedural safeguards are equally stern. For example, all parties to the surrogacy must successfully complete counseling and medical and nonmedical evaluation. The parties must jointly petition a court to finally determine the validity of the surrogacy contract, according to enumerated requirements, before performance. The surrogacy may not be performed without a written indication by all parties of their informed consent. Finally, for reasons explained in the comments to Article 6, the Act requires that a surrogate be allowed up to seventy-two hours after the child's birth to decide to keep the resulting child. If this option is not exercised, the intended parents become the legal parents of the resulting child. Breach of contract or noncompliance with the Act does not affect this right-of-parentage scheme.

The other sections of act Act govern related aspects of surrogacy and reproductive technologies. Article 2 sets out the general rules of parentage, while Article 3 concerns obligations to, and rights of, the child. Article 7 governs evaluation and counseling, and Article 8 gives general immunity and liability standards. Finally, Article 9 details general regulatory requirements, such as record keeping and confidentiality, and puts forth a set of unique provisions regulating gametes and preembryos.

Throughout the year, the students benefited both in enthusiasm and understanding from the substantial amount of research that is being published on the subject of reproductive technologies and from the public interest generated by the Baby M case and the 1987 Vatican statement. In some measure, the burdens surrounding reproductive technologies are the product of the current legal system's failure to adjust the parenting notions of a simpler day to the technological innovations of the present. It was all too obvious to the students, as it must be to the public in light of Baby M, that children most often bear the principal burdens, many of which are not fully understood.

Whatever one may conclude about the result reached in Baby M or in any other case, it seems clear that the legal system must face up to the facts of today's reproductive technologies and begin to think now about tomorrow's technologies. It seems even clearer that the inevitable involvement of the legal system will be better shaped by thoughtful legislative action than by the single-handed response of a judge, who must necessarily create law in the course of choosing among often unsatisfactory alternatives. Finally, it seems evident that a set of rules to settle legal relationships will almost always be superior to bitter, prolonged, public, and self-destructive custody disputes fought out in the nation's courts.

Avoiding such results, achieving thoughtful and informed solutions, and providing for safe and effective regulation of the new reproductive technologies were the students' chief objectives. The Model Act is a product of their collective judgment, an informed judgment by a group of students who reflected a wide range of values, experiences, backgrounds, and beliefs.

At the beginning of the year, we were uncertain whether the enterprise we had launched would flourish or founder. Only in weak moments did we ever consider the possibility of a statutory product that would be of sufficient scope and quality to be published as a serious proposal for legislative enactment. We take great pride, therefore, in the students who produced this Model Human Reproductive Technologies and Surrogacy Act.

Randall P. Bezanson

Sheldon F. Kurtz

Beverly Hovenkamp

TABLE OF CONTENTS

Statement of Purpose ...................................................... 950

                         ARTICLE I GENERAL PROVISIONS

' 1-101 Short Title ....................................................... 951

' 1-102 Definitions ....................................................... 951

Comment ................................................................... 952

                         ARTICLE 2 RULES OF PARENTAGE

' 2-101 Mother-Child Relationship ......................................... 955

Comment ................................................................... 955

' 2-102 Father-Child Relationship ......................................... 955

Comment ................................................................... 957

' 2-103 Termination and Transfer of Parental Rights to Intended Parents ... 958

Comment ................................................................... 958

' 2-104 Effect of Noncompliance ........................................... 959

Comment ................................................................... 959

               ARTICLE 3 OBLIGATIONS TO AND RIGHTS OF THE CHILD

' 3-101 Health Care Decisions Concerning the Fetus ........................ 960

Comment ................................................................... 960

' 3-102 Legitimacy ........................................................ 962

Comment ................................................................... 962

' 3-103 Parents' Duty to Support .......................................... 963

Comment ................................................................... 963

' 3-104 Duty of Others for Support ........................................ 963

Comment ................................................................... 963

' 3-105 Intestate and Testate Succession .................................. 964

Comment ................................................................... 965

                            ARTICLE 4 INSEMINATION

' 4-101 Eligibility ....................................................... 967

Comment ................................................................... 968

                       ARTICLE 5 IN VITRO FERTILIZATION

' 5-101 Eligibility ....................................................... 970

Comment ................................................................... 971

                              ARTICLE 6 SURROGACY

' 6-101 Regulatory Procedures ............................................. 973

Comment ................................................................... 973

' 6-102 Eligibility ....................................................... 975

Comment ................................................................... 975

' 6-103 Judicial Preauthorization ......................................... 976

Comment ................................................................... 978

' 6-104 Mandatory Terms of Surrogate Contract ............................. 980

Comment ................................................................... 981

' 6-105 No Specific Performance Rule ...................................... 985

Comment ................................................................... 985

' 6-106 Damages ........................................................... 986

Comment ................................................................... 987

                             ARTICLE 7 EVALUATION

' 7-101 Nonmedical Evaluation ............................................. 990

Comment ................................................................... 990

' 7-102 Medical Evaluation ................................................ 991

Comment ................................................................... 992

' 7-103 Counseling ........................................................ 993

Comment ................................................................... 994

ARTICLE 8 LIABILITIES AND IMMUNITIES FOR PARTICIPANTS OF INSEMINATION, IN VITRO

                         FERTILIZATION, AND SURROGACY

' 8-101 Immunities ........................................................ 997

' 8-102 Liabilities ....................................................... 997

Comment ................................................................... 997

                        ARTICLE 9 REGULATORY PROVISIONS

' 9-101 Licensure and Regulation of Collection and Storage of Human

  Gametes and/or Preembryos ............................................... 999

Comment ................................................................... 999

' 9-102 Record Keeping ................................................... 1000

Comment .................................................................. 1001

' 9-103 Restrictions on Use of Preembryos ................................ 1001

Comment .................................................................. 1001

' 9-104 Rights in Gametes and Preembryos ................................. 1002

Comment .................................................................. 1002

' 9-105 Transferability of Gametes and Preembryos ........................ 1002

Comment .................................................................. 1002

' 9-106 Rights in Transferred Gametes and Preembryos ..................... 1003

Comment .................................................................. 1004

' 9-107 Transfer of Rights with Respect to Gametes and Preembryos ........ 1006

Comment .................................................................. 1006

' 9-108 Disposition of Gametes and Preembryos upon the Death or

  Dissolution of the Person in Possession ................................ 1007

Comment .................................................................. 1007

' 9-109 Status as Lives in Being: The Rule Against Perpetuities .......... 1008

Comment .................................................................. 1008

' 9-201 Maintenance and Confidentiality of Records ....................... 1009

Comment .................................................................. 1011

The purpose of this [Act] is threefold: (1) to determine the legal status of children born as a result of artificial insemination, in vitro fertilization, and surrogacy; (2) to provide for the safe regulation of and access to these reproductive technologies and surrogacy; and (3) to establish necessary standards and procedural safeguards to ensure that these technologies are utilized in the best interest of the resulting children.

While the [Act] makes insemination by donor and in vitro fertilization easily accessible, it requires all donors and recipients to be medically evaluated before engaging in these procedures, to ensure healthy parents and a healthy resulting child.

There exist strong, intelligent arguments both for and against surrogacy. Yet, the fact remains that hundreds of couples contracted with surrogates last year. Although surrogacy presents unique ethical, legal, and emotional dilemmas, to ignore or ban surrogacy will inevitably lead to unregulated arrangements. Thus, the [Act] does not prohibit surrogacy but fully and carefully regulates surrogacy arrangements to protect the interests of all parties involved. More specifically, the [Act] ensures that surrogacy arrangements are only utilized by married couples and only when necessary; that all parties to a surrogacy contract are physically, emotionally, and mentally qualified to fulfill the obligations of parenthood and their respective responsibilities under the surrogacy contract; that the surrogate is adequately protected and informed so that she is able to give informed consent to the arrangement; that the resulting child's status is legally certain in order that the child not be the chief remedial focus of litigation; and that adequate support be assured for the resulting child.

Finally, the [Act] ensures the safe and professional operation of human gamete and/or preembryo collection and storage facilities.

ARTICLE I

This [Act] may be cited as the Human Reproductive Technologies and Surrogacy Act.

The following words and phrases, whenever used in this [Act], shall have the following meanings, unless the context otherwise requires:

(1) 'Birth Mother' means a woman who gestates an embryo conceived by insemination, in vitro fertilization, or as a result of a surrogacy arrangement.

(2) 'Donor' means an individual who contributes his or her gametes for the purpose of insemination, in vitro fertilization, or implantation in another, or a woman who contributes a preembryo.

(4) 'Health Care Provider' means a person who is licensed, certified, or otherwise authorized by the law of [this State] to administer health care in the ordinary course of business or practice of a profession.

(5) 'Informed Consent' occurs when a person, while exercising care for his or her own welfare, makes a decision about whether or not to participate in a proposed medical procedure or contractual arrangement that is based on a full awareness of the relevant facts. The relevant facts include: (a) the medical and psychological risks; (b) the legal, financial, and contractual rights and obligations; and (c) the available alternatives, including the alternative of not participating in any procedure or arrangement and each alternative's attendant risks and obligations.

(6) 'Insemination' means introduction of semen into a woman's vagina, cervical canal, or uterus through noncoital means.

(7) 'Intended Parents,' including 'Intended Father' and 'Intended Mother,' means persons who are married to each other and who, complying with the requirements of this [Act], enter into a surrogacy contract with a surrogate by which they are to become the parents of the resulting child.

(8) 'In Vitro Fertilization' means all medical and laboratory procedures that are necessary to effectuate:

(a) the extracorporeal combining of gametes to allow fertilization to occur; or

(9) 'Licensed Person' means a person licensed or authorized by the [State Department of Health] pursuant to Section 9-101 of this [Act] to engage in the collection, storage, or use of gametes and preembryos.

[(10) 'Partner' means an individual specified by an insemination recipient or a preembryo transfer recipient to share equally the rights and responsibilities of parenthood for any resulting child.]

(11) 'Person' means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

(12) 'Preembryo' means the cell mass that results from fertilization of an ovum prior to implanation.

(13) 'Surrogacy' or 'Surrogacy Arrangement' means any arrangement by which a woman agrees to be impregnated by noncoital means, using either the intended father's sperm or the intended mother's egg, or both, with the intent that the intended parents are to become the parents of the resulting child after the child's birth.

(14) 'Surrogate Contract' means an agreement that complies with the requirements of Article 6 of this [Act] providing for a surrogacy arrangement.

(15) 'Surrogate' means a woman who agrees, pursuant to a surrogacy contract, to bear a child for intended parents.

Under Section 1-102(2), only the woman, and not the man, who contributes a preembryo is a donor of the preembryo. Thus, where a preembryo is removed from a woman's body by embryo lavage, the man who provided the sperm used to create the preembryo is not a donor of the preembryo under the [Act]. Pursuant to Section 9-104, the man who provides the sperm used to create the preembryo has only those rights in the preembryo acquired under Section 9-107(c).

Section 1-102(5) defines the concept of informed consent. The [Act] employs the term 'informed consent' in a number of settings. The term is specifically defined in order to make explicit the range of settings and information embraced within its scope when applied to the reproductive arrangements covered by the [Act]. At base, the concept of informed consent requires that an individual be allowed to choose his or her own course. Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972).

The definition of informed consent is central to many provisions of the [Act] and concerns the need for persons who make decisions to have information pertaining to medical, legal, financial, and emotional risks and choices. These individuals need information about their condition, the proposed medical treatment, and the risks, rights, and obligations involved in alternative courses of treatment.

The definition of informed consent departs from the common-law definition in two ways. First, the common-law doctrine of informed consent is based on the physical well-being of the individual. Although physicians must disclose risks that are significant to the patient's decision, a physician is not liable at common law for failing to disclose a significant risk that does not materialize. Scott v. Bradford, 606 P.2d 554, 559 (Okla. 1979). The [Act], in contrast, deals with reproductive technologies where decisions to participate are highly personal and not based on physical well-being alone. Thus, under Section 1-102(5), failure to disclose risks encompassed within the meaning of informed consent may result in liability under Article 8. The focus is not limited to whether the risk that should have been disclosed materialized, but on whether it was disclosed at all. Without informed consent, individuals might participate in a procedure whose consequences they are unwilling to bear, and therefore impose costs on others.

The [Act's] second departure from the common law of informed consent is that its definition does not use the reasonable person standard. Under the common law, the courts are reluctant to delve into an individual's mind to determine whether he or she gave informed consent. The common-law principle of informed consent therefore requires a physician to disclose all material facts that would be significant to a reasonable person in making the same decision as the patient. Cowman v. Hornaday, 329 N.W.2d 422, 425 (Iowa 1983). Section 1- 102(5), however, does not require that the decisions by an individual be ones that most people would consider reasonable. This is because the reproductive technologies involved require highly personal decisions that are not based solely on physical well-being. Cf. Schultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 264 (1985). For example, a woman can abort a fetus for medically necessary reasons, or she can decide, on personal grounds, to risk her life and carry the fetus to term. Either decision is a result of informed consent if the woman is fully aware of the consequences of her decision.

The judicial preauthorization procedure of surrogacy provided for in Section 6-103 requires the judge to find informed consent by all parties to a surrogacy contract. Since a surrogacy arrangement brings in a third party, the surrogate, a whole new set of emotional risks and legal and financial rights and obligations are created. In addition to the usual medical, financial, and legal risks attendant to insemination and in vitro fertilization, the surrogate has her own motives and concerns, which may conflict with those of the intended parents. For instance, unbeknownst to the intended parents, the surrogate may plan to keep the child the intended parents want. The potential conflict of motives and concerns creates additional problems about which the parties to the surrogacy contract must be fully aware. The judicial preauthorization procedure acts as an additional safeguard against any failure to obtain informed consent to the complicated surrogacy arrangement.

The definition of in vitro fertilization in Section 1-102(8) includes either of two distinct procedures: fertilization in the strict sense of extracorporeal fertilization and the transfer of a preembryo into the uterus. Thus, the definition is intended to be broad enough to include such procedures as embryo lavage or other similar reproductive technologies developed in the future.

Section 1-102(8) is also meant to include the procedures necessary for in vitro fertilization. In embryo lavage, for example, the procedures used to obtain a preembryo are covered by this definition as well as the subsequent transfer of the preembryo into the uterus.

The bracketed definition of partner in Section 1-102(10) corresponds with the bracketed language in Sections 4-101(c) and 5-101(c).

The definition of surrogacy in Section 1-102(13) covers only arrangements where a woman agrees to be impregnated by noncoital means, using either the intended father's sperm, or the intended mother's egg, or both. Surrogacy is defined to exclude arrangements using neither of the intended parents' gametes. Because of the substantial medical and emotional risks to all parties involved in a surrogacy arrangement, the use of surrogacy should generally be discouraged. When would-be parents desire to raise a child, but both are either unable to provide a viable gamete or are indifferent to the biological relation of the child to be raised, then this desire should be fulfilled using adoption procedures. That is, the definition of surrogacy is limited so that intended parents must not only want a child, they also must desire and at least one of them must be able to produce a biologically related child. Without this limitation, surrogacy might well replace adoption.

ARTICLE 2

Except as otherwise provided in this [Act], a woman is the mother of a child to whom she has given birth.

The mother-child relationship is established under Section 2-101 by proof that the mother has given birth to the child. Thus, this section is consistent with the current legal presumption that assigns parentage to the birth mother. See Broun, The Unfillable Promise of One Rule for All Presumptions, 62 N.C.L. REV. 697, 700-02 (1984) (explaining presumption that parents are woman who gives birth and her husband); see also BLACK'S LAW DICTIONARY 913 (5th ed. 1979) (defining mother as woman who bears child). Moreover, this relationship is conclusively determined at the point of birth regardless of whether the child was conceived through sexual intercourse, insemination, or in vitro fertilization.

Section 2-101 recognizes that the birth mother usually intends to form a parental relationship with her child. For this reason, Section 2-101 provides that, absent compliance with Article 6 by the parties to a surrogacy contract, the woman who gives birth to the child will be the child's mother. In the case of a surrogacy contract under Article 6, parenthood remains in the surrogate if she elects to keep the child within seventy-two hours of the child's birth, but is automatically transferred to the intended parents if the surrogate makes no such election. These rules are also reflected in Section 2-103. In the case of a surrogacy arrangement that fails to comply with Article 6 of this [Act], parentage is determined only under the provisions of Section 2-101 and Section 2-102. See also ' 2-104.

This [Act] does not supersede existing state law by which the child might be adjudicated a ward of the state because all persons to whom parenthood is assigned under this [Act] abandon their parental responsibilities for the child.

(1) he and the child's mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated for any reason, or after a decree of separation is entered by a court;

(2) before the child's birth, he and the child's mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared void, voidable, or otherwise invalid; and

(i) if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination for any reason; or

(ii) if the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation;

(3) after the child's birth, he and the child's mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared void, voidable, or otherwise invalid; and

(i) he has acknowledged his paternity of the child in a writing filed with the [appropriate court or Vital Statistics Bureau];

(ii) with his consent, he is named as the child's father on the child's birth certificate; or

(iii) he is obligated to support the child under a written voluntary promise or by court order;

(4) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his child; or

(5) as an unmarried donor of sperm for use in insemination or in vitro fertilization, he and an unmarried woman, who under Section 2-101 would be the mother of the child, follow the procedures in Article 4 or Article 5 and agree in writing in advance of the procedure that the donor shall be the father.

(b) A presumption under subsection (a) may be rebutted in an appropriate action only by clear and convincing evidence. The existence of the father and child relationship presumed under paragraphs (1), (2), or (3) of subsection (a) is not, however, rebutted by evidence that the child was conceived by means of insemination or in vitro fertilization so long as the presumptive father complies with the requirements of Section 4-101(c) or Section 5-101(c) of this [Act]. In the absence of such compliance, the presumptive father's consent will be conclusively presumed by his failure to object to paternity [by filing an action to dispute paternity] within 30 days after he knew or should have known of the child's birth. If two or more presumptions of paternity arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

Section 2-102 describes the circumstances in which the presumption of paternity will arise under this [Act]. Paragraphs (1) through (4) of subsection (a) are fashioned after Section 4 of the UNIFORM PARENTAGE ACT, 9A U.L.A. 587 (1979). By contrast, paragraph (5) allows an unmarried woman, who would become the birth mother, and a semen donor to enter into a binding written agreement declaring that the semen donor is the resulting child's father, provided that both parties follow the procedures mandated in Article 4 or Article 5 and agree to the paternity in writing prior to the insemination or in vitro fertilization procedure. Section 2-102(a)(5) is applicable only when the donor is known and wishes to continue a parental relationship with his child. Evidence of this intent and the mother's acquiescence will be found in the written agreement required by paragraph (5). The rationale underlying Section 2-102(a)(5) is that it is not in the best interest of the child to exclude the donor if he desires the rights and responsibilities created by the paternal parent-child relationship. Additionally, the state welfare system benefits in having two child support obligors.

Section 2-102(a)(5) cannot apply to surrogacy arrangements because surrogacy is outlined in Article 6 and Section 2-102(a)(5) is limited to the procedures outlined in Articles 4 and 5.

Subsection (b) states that a presumption of paternity under subsection (a) is rebuttable only by 'clear and convincing evidence.' If a man is presumed to be the father of a child pursuant to paragraphs (1), (2), or (3) of subsection (a), evidence that the child was conceived as a result of insemination or in vitro fertilization will not rebut the presumption, provided that the presumptive father consented to such procedure in the manner provided for in Section 4-101(c) or Section 5-101(c). For example, if a husband agrees to the insemination of his wife, he is conclusively presumed to be the resulting child's father under this section. Conversely, when a woman becomes pregnant by means of insemination or in vitro fertilization without the consent of her husband, Section 2-102 affords the presumptive father a qualified right to rebut the parent-child relationship so established, on the basis of his noncompliance with the appropriate provision of this [Act]. If the presumptive father does not dispute paternity within thirty days after he knew or should have known of the child's birth, he will be conclusively presumed to be the child's father. To avoid uncertainty, the [Act] specifies that such an objection is shown by filing an action disputing paternity. A state may wish to refer to some other procedure for disputing paternity or to refer to an appropriate section of its laws.

If competing claims of paternity arise under Section 2-102, the [court] is further directed to ascertain paternity on the basis of 'the weightier considerations of policy and logic,' a discretionary standard that should be read in light of the intent of the parties who resort to the procedures governed by this [Act].

Parental rights established under this article shall be terminated and transferred to the intended parents or to the surrogate and her husband, if any, only pursuant to Article 6 of this [Act].

This section provides that parental rights established by Section 2-101 and Section 2-102 are relinquished by the surrogate and her husband, if she is married, and transferred to the intended parents, as provided in Section 6- 103(d)(4), if there is a surrogacy contract complying with the provisions of Article 6 of this [Act]. If parenthood is so transferred to the intended parents, they alone, and for all purposes, are the child's legal parents. The assignment of maternity will remain with the surrogate, however, if, pursuant to Section 6-104(a), she elects within seventy-two hours of the child's birth to keep the child. If such an election is made, any paternity will be determined under Section 2-102. By conditioning the parental rights of the intended parents in this manner, this section accounts for the interests of the surrogate who may or may not want to assume the responsibilities of parentage.

The variety of genetic relationships that may exist in a surrogacy arrangement necessitate inclusion of the surrogate and her husband, if any, in this provision. Inclusion is also necessary because either the intended father or the intended mother or both will be the biological parent, thus requiring, in the case where the surrogate elects to keep the child, transfer of parentage to the surrogate's husband or the surrogate, respectively, under the laws of many states. Cf. Donovan, The Uniform Parentage Act and Nonmarital Motherhood-by-Choice, 11 N.Y.U. REV. L. & SOC. CHANGE 193, 209-10 (1983) (discussing problem of biological father who changes mind about his role as parent).

Noncompliance with the requirements of this [Act] shall not affect the determination of parenthood under Article 2, nor shall breach of a judicially preauthorized surrogacy contract affect transfer of parentage under Section 6- 103(d)(4).

Section 2-104 ensures that, should the requirements of insemination or in vitro fertilization not be followed, or in the event of a breach of a preauthorized surrogacy contract, all questions pertaining to the parentchild relationship are determined in accordance with the provisions of Article 2. In other words, the child's status will not become part of a remedy for noncompliance or breach.

For example, if intended parents and a surrogate enter into a contract pursuant to Article 6 that proscribes surrogate drug ingestion, and if the surrogate breaches by ingesting drugs eesulting in a deformed child that is unwanted by all of the parties, Sections 2-103 and 2-104 provide that the intended parents receive all rights and incur all obligations, including child support, as parents of the resulting child. The intended parents, although now legally the parents of the resulting child, may in turn bring a breach of contract action against the surrogate for appropriate damages pursuant to Section 8-102(b). Thus, Section 2-104 serves the interests of the resulting child by assuring that, although litigation over monetary liability may occur, the parental rights and responsibilities are firmly established.

(a) All decisions regarding the health of the birth mother and the fetus are to be made by the birth mother.

(1) the expiration of the 72-hour period specified in Section 6-103(d)(4), or

health care decisions regarding the resulting child shall be made by the birth mother, or, in the event of her disability, by the intended parents, unless the surrogacy contract otherwise provides.

Section 3-101(a) confers upon the birth mother the right to make health care decisions for herself and her fetus. The birth mother should have responsibility for health care decisions because any action taken concerning the fetus' health also affects the birth mother's health and because her privacy interests are paramount. See Roe v. Wade, 410 U.S. 113, 152-54, 164 (1973). During most of the pregnancy, her interests outweigh those of the state. Id. at 163. Her privacy interests always outweigh those of her parents, see Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976), and her spouse, see id. at 71.

In all areas but surrogacy, this rule is generally accepted. Compare Danforth, 428 U.S. at 74 (noting privacy interests of pregnant woman) with Coleman, Surrogate Motherhood: Analysis of the Problems and Suggestions for Solutions, 50 TENN. L. REV. 71, 85-86 (1982) (arguing that people who hire surrogates should be able to enforce contract requiring regular medical checkup). Although, in the surrogacy context, the birth mother's interest is slightly weaker, that interest still requires that she be given control over herself and the fetus. Because the surrogate will surrender the child to the intended parents, she has fewer long-term interests at stake. For example, child care expenses and life-style changes will fall primarily on the intended parents. Therefore, the surrogate's privacy interests are weakened slightly in relation to those of the intended parents, suggesting that some participation by the latter parties in health care decisions is justifiable. Notwithstanding this fact, there are a number of reasons why the intended parents' interest must be subordinate to the surrogate's interest.

First, the possibility that the surrogate may end up keeping the child under Section 6-104(d), somewhat strengthens the surrogate's interest.

Second, even if the possibility of keeping the child was not available to the surrogate, the surrogate's privacy rights are strong enough to allow her the sole right to make health care decisions during the pregnancy. The birth mother still has an interest in her personal health, the fetus' health, and her life style during the pregnancy. The strength of these interests requires that the birth mother keep her right to make all the health decisions.

Third, surrogacy is analogous to adoption situations, in which the mother retains her privacy interests. A pregnant woman can avoid parenthood by surrendering the child for adoption, but this possibility does not eliminate her privacy interests during pregnancy. See Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976) (noting privacy interests of pregnant woman). The fact that a surrogate intends to surrender the child should not militate against her privacy rights any more than these situations. Because the typical mother has not lost her privacy rights, neither should a surrogate.

Finally, the case for allowing the intended parents to make the health care decisions during the pregnancy is even weaker than is the case for the biological mother's parents or spouse. Cf. Danforth, 428 U.S. at 71-75 (interests of parents and spouse subordinate to mother). When parents or a spouse are involved, there is at least an assumption that they have the woman's interests in mind. No such assumption should be made on behalf of the intended parents. Their primary interest is in the child, and they can be expected to put that interest above the interests of the surrogate. Because of this potential conflict, the surrogate should be able to prevent the intended parents from putting pressure on her to make a decision risky to herself but beneficial to the fetus.

Section 3-101(a) only applies to health care decisions made during the pregnancy. Except for surrogacy, all health care decisions affecting the resulting child and made after the child's birth are made by the child's parents as determined under the provisions of Articles 2 and 6 of this [Act]. In a surrogacy arrangement, postnatal health care decisions are governed by Subsection (b).

Section 3-101(b) applies in the surrogacy situation only. This section determines who shall care for the child in the seventy-two-hour time period after the child's birth and clarifies decision-making authority if the surrogate is unable to make such decisions. If she is able, the surrogate should make all health care decisions for the child during this time period. The main reason for allowing the surrogate to make health care decisions is to protect the child. During this period, it is reasonable to conclude that the surrogate will have the interests of the child at heart. The surrogate can still decide to keep the child and, therefore, will have a strong interest in ensuring that the child is given the proper medical attention. If, after the child's birth and prior to the running of the full seventy-two-hour period, the surrogate gives notice to keep the child, then this section applies only for the period of time between the child's birth and the giving of such notice. Thereafter, the surrogate (or her husband or guardian) makes all health care decisions affecting the child, pursuant to Articles 2 and 6 of this [Act]. If the surrogate does not give notice within the seventy-two-hour postnatal period, she retains decision-making authority up to the seventy- second-hour. After this period decision-making authority transfers to the intended parents pursuant to Articles 2 and 6 of this [Act]. Nothing in this section precludes the surrogate from consulting with the intended parents.

The surrogate will generally be available to make these health care decisions. This availability is of the utmost importance when decisions have to be made quickly, as is typically the case in neonatal emergencies. The surrogate may not, however, always be able to make decisions for the child, due to complications arising from the birth. Were this to occur under normal circumstances, the husband or the guardian of the worman--or the guardian of the child--would make the necessary decisions. In the surrogacy context, this approach is unsatisfactory. Because at least one of the intended parents of the child must also be the child's genetic parent, the intended parents have a more direct interest in the child's health and welfare than does the surrogate's husband or guardian. Because of this genetic link and because of the assumption that the intended parents will be the child's parents at the end of the seventy-two-hour period, the intended parents will be more likely to act in the child's best interests than would the surrogate's husband or guardian.

While this section clarifies who should make health care decisions, the rules in this section are not the only possible solution to this problem. Therefore, if the parties to a surrogacy contract agree on a differenent method of making these postnatal health care decisions, their procedure will be followed provided that the agreement is a part of the surrogacy contract and is otherwise enforceable under the circumstances.

If, under the provisions of this [Act], a parent-child relationship is created between two persons, the child shall be considered for all purposes of law the legitimate child of the parent.

This section is intended to make it clear that a child born through the utilization of the procedures provided for in Articles 4, 5, and 6 of this [Act] is the legitimate child of the person or persons to whom parenthood is assigned under the provisions of this [Act]. The policy behind this section is that the benefits of legitimacy should be accorded to the child who is born through the utilization of the procedures provided for in Articles 4, 5, and 6 of this [Act].

Any person who is determined to be the parent of a child under the provisions of Article 2 of this [Act] shall support the child.

This section makes no substantive changes to existing support laws. Rather, it merely incorporates existing support laws into this [Act].

(a) If the parties who are involved in an insemination, in vitro fertilization, or surrogacy arrangement do not substantially comply with the applicable provisions of Article 4, Article 5, or Article 6 of this [Act], then, in addition to the support obligations determined under Section 3-103, the court may impose a support obligation on:

In imposing this support obligation, the court may consider the seriousness of and the reasons for noncompliance in order to determine which of the parties, if any, should be liable for support.

(b) If any person willfully fails to comply with the provisions of this [Act], as determined under Section 8-102(a), and the effect thereof is the authorization of a procedure in violation of this [Act], that person may be liable for support of the resulting child.

Traditionally, only a child's parents are liable for the child's support. This section extends the obligations to support a child born as the result of insemination, in vitro fertilization, or surrogacy to persons who would not be liable for child support under current law. Section 3-104 has two essential purposes. One is to ensure that the economic maintenance of the child will be taken care of with a minimum burden on the state welfare system. The other is to encourage compliance with the provisions of the [Act].

Section 3-104(a) authorizes a court to impose an obligation of support upon donors or intended parents who do not substantially comply with the provisions of this [Act]. In determining whether a support obligation should be imposed upon such persons and in what amount, the court may consider the seriousness of and the reasons for noncompliance.

Under Section 3-104(b), if a person willfully fails to comply with the provisions of the [Act] and as a result of such action a reproductive procedure is performed that violates the [Act], that person may be held liable for the support of the resulting child. This provision applies to doctors, lawyers, evaluators, suppliers, and others who actively participate in the procedures regulated by the [Act]. The determination of willfulness should correspond with that provided for in Section 8-102(a).

Section 3-104 is designed to ensure use of, and compliance with, the [Act], and to ensure that the resulting child and the state will not financially suffer when there is a substantial or willful noncompliance with the provisions of this [Act]. By holding persons potentially liable for violating the [Act's] provisions, this section creates a penalty that should deter improper use of insemination, in vitro fertilization, and surrogacy procedures. Section 3-104 gives the child more support obligors and, therefore, increases the likelihood of adequate support. Additionally, the state will not be left with the burden of supporting a child born through procedures prohibited by this [Act].

(a) Subject to the provisions of Section 3-105(b), a child shall be considered a child only of his or her parent or parents as determined under Article 2 of this [Act], and vice versa, for purposes of

(3) taking under the will of any person, unless such will otherwise provides; and,

(4) being entitled to any support or similar allowance during the administration of a parent's estate.

(1) the child of the intended parents from the moment of the child's birth unless within 72 hours of the birth of such child the surrogate gives notice of her intent to keep the child pursuant to Section 6-104(d) of this [Act]; or

(2) the child of the surrogate and her husband, if any, or if none, the person presumed to be the father under Section 2-102(a)(4), from the moment of the child's birth if the surrogate gives notice of her intent to keep the child pursuant to Section 6-104(d) of the [Act].

In general, Section 3-105(a) uses the parent-child relationship, as determined by Article 2, to determine the reciprocal rights of a child born pursuant to one of the procedures provided for under this [Act] and of the child's parentsd to inherit property, either under the will of any person, whether or not the child's parent, unless the will provides otherwise, or by intestate succession. Once the parent-child relationship is determined, governing state laws relating to intestate and testate succession apply. For example, if child A is born to woman B as the result of insemination, A is the child of B and any person determined to be A's father under Section 2-102. If B died intestate, A would inherit from B.

Section 3-105(b) addresses inheritance relationships in the case of surrogacy. Under this section, a child born to the surrogate is the child of the intended parents for purposes of testate and intestate succession from the moment of the child's birth, unless the surrogate elects to keep the child within seventy-two hours of the child's birth pursuant to Section 6-104(d). Thus, if the intended parents, or either of them, dies during the pregnancy or within seventy-two hours of the child's birth and the surrogate does not elect to keep the child, the child is the child of the deceased intended parent or parents for testate or intestate succession purposes. If the surrogate dies within seventy-two hours of the birth of the child without having elected to keep the child, the child is not a child of the surrogate for testate or intestate succession purposes. Similarly, if the surrogate's husband dies during the pregnancy or within seventy-two hours of the birth of the child, the child is the husband's child for testate or intestate succession purposes only if the surrogate elects to keep the child pursuant to Section 6-104(d) of this [Act]. In order to ensure that the child has only one set of parents, it is necessary to relate the parent-child relationship back to the moment of birth, even though the parenthood of that child may not be known for seventy-two hours after the child's birth.

If the surrogate elects to keep the child pursuant to Section 6-104(d) of this [Act], the child is not the child of the intended parents for purposes of testate and intestate succession. Rather, the child is the child of the surrogate and her husband, if any, for such purposes. If the surrogate has no husband, the child is the child of the surrogate and any person presumed to be the child's father under Section 2-102(a)(4).

Nothing in Section 3-105 precludes the surrogate or intended parents or any other person from making a testamentary provision for a child born to the surrogate even though that child is not the child of that person.

A child whose parents are determined under the provisions of Article 2 of this [Act] is a member of the class of children or issue of any such parent in favor of whom a gift has been made under the will of such parent or any other person. For example, if a father created a testamentary trust to pay the income to his daughter, M, for life, remainder to M's death the trust then, unless the father's will provides otherwise, upon M's death the trust corpus would be distributed to M's children, including any child of M determined under Article 2 of this [Act].

If a child born to a surrogate dies more than seventy-two hours after the child's birth, inheritance from the child is determined according to the parent-child relationships established under Article 2. If the child dies within seventy-two hours of birth, the determination of parenthood will not be known until the seventy-two hours expire, and parenthood, as so determined, will relate back to the moment of the child's birth. Thus, if the surrogate elects to keep the child, she and her husband, if any, are the parents of the child for inheritance purposes; if the surrogate does not elect to keep the child, the intended parents are the parents of the child for inheritance purposes.

Sinsemination shall be performed in accordance with regulations adopted by the [State Department of Health] and shall be available only to a woman:

(b) who, if unmarried, successfully completes the nonmedical evaluation, and who, whether or not married, successfully completes the medical evaluation, receives appropriate counseling, pursuant to Article 7 of this [Act], and provides written certification of the counseling and any evaluation to the licensed person performing the insemination procedure; and

(c) whose husband, if the recipient is married, receives appropriate counseling pursuant to Article 7 of this [Act], and:

(1) successfully completes the medical evaluation, if he is the gamete donor in the insemination procedure,

(2) provides written certification of the counseling and any evaluation to the licensed person performing the insemination procedure, and

(3) indicates, by a writing, acceptance of the legal rights and responsibilities of parenthood for any resulting child unless the husband contributes his sperm for the insemination procedure.

[(c) whose partner, or husband if the recipient is married, receives appropriate counseling pursuant to Article 7 of this [Act] and:

(1) successfully completes the medical evaluation, if he is the gamete donor in the insemination procedure and, in the case of a partner, successfully completes the nonmedical evaluation, pursuant to Article 7 of this [Act],

(2) provides written certification of the counseling and any evaluation to the licensed person performing the insemination procedure; and

(3) indicates, by a writing, acceptance of the legal rights and responsibilities of parenthood for any resulting child unless the husband contributes his sperm for the insemination procedure.]

Section 4-101 sets forth the eligibility requirements for insemination. The eligibility criteria of Section 4-101 achieve a balance between an individual's interest in receiving insemination and the best interests of any resulting child. Insemination need not be medically necessary for fertilization for a woman's participation in insemination to fall within the coverage of this article. Section 4-101 is also intended to eliminate the concerns of health care providers regarding possible liability for providing insemination to single women.

Section 4-101 contemplates the provision of insemination services to single as well as married women. This reflects a policy determination that neither marital status nor sexual preference alone should adversely affect a woman's eligibility to participate in insemination. The bracketed Section 4-101(c) gives states an option to provide coverage to all couples that participate in insemination, whether or not the partners are married to one another. Expanding coverage beyond married couples extends parenthood rights and responsibilities to unmarried partners and provides a legal relationship for any child born through insemination to both partners composing an unmarried couple.

The minimum age requirement in Section 4-101(a) reflects a policy determination, based on increased health risks accompanying teenage pregnancy, that it is undesirable for individuals under the age of eighteen to have children through insemination. The age limitation is bracketed because the choice of any particular age is somewhat arbitrary and enacting states may therefore validly differ in judgment.

Section 4-101(b) requires unmarried women to successfully complete a nonmedical evaluation pursuant to Section 7-101. Unmarried partners are similarly required by bracketed Section 4-101(c)(1) to complete a nonmedical evaluation successfully. Married couples are exempted from nonmedical evaluation because such an evaluation impermissibly intrudes into the marital relationship and because, for married couples, insemination is primarily a medical procedure designed to resolve problems of infertility. The privacy of the marital relationship outweighs the possible benefits of nonmedical evaluation for any resulting child. An individual woman's privacy or an unmarried couple's privacy, however, does not seem to outweigh the possible benefits of nonmedical evaluation for any resulting child because the relationships and home environments of these people often prove unstable for a child.

Under Section 4-101(c)(2), a husband who contributes his own gametes for his wife's insemination need not provide written acceptance of parenthood. In this instance, the husband is the biological parent of any resulting child and, like all such parents, is responsible for the child. The exemption places such husbands in the same legal position as if a child were born to the marriage without use of insemination procedures. Husbands who do not contribute gametes for their wives' insemination, however, and unmarried partners, regardless of whether they contributed their gametes for the insemination, must accept parental responsibility by a writing. This provision is intended to secure the legal status and rights of the resulting child by eliminating the possibility of later litigation of such issues as support obligations or inheritance. Acceptance by the husband/partner of legal responsibility for any resulting child will discourage irresponsible behavior based on the absence of a formal marriage or biological paternity. The writing thus ensures that children are born only to those who willingly accept parental responsibilities.

All husbands, whether or not the sperm donor, and all women who are to be inseminated, must receive counseling. The level of counseling will depend upon all of the facts and circumstances, as indicated in the comments to Section 7- 103.

Licensed persons may not perform insemination procedures until they receive written certification that all appropriate counseling and evaluations are successfully completed. This requirement does not preclude the performance of insemination when counseling has taken place, but will continue after insemination and, therefore, is not complete. The statutory requirement of appropriate counseling means that level of counseling which is deemed necessary before insemination occurs.

For further comments, see the comments to Article 5, relating to in vitro fertilization.

In vitro fertilization shall be performed in accordance with regulations adopted by the [State Department of Health] and shall be available only to a woman:

(b) who, if unmarried, successfully completes the nonmedical evaluation, and who, whether or not married, successfully completes the medical evaluation and receives counseling, pursuant to Article 7 of this [Act], and provides written certification of the counseling and any evaluation to the licensed person performing the in vitro fertilization procedure; and

(c) whose husband, if the recipient is married, receives appropriate counseling, pursuant to Article 7 of this [Act], and:

(1) successfully completes the medical evaluation, if he is the gamete donor in the in vitro fertilization procedure,

(2) provides written certification of the counseling and any evaluation to the licensed person performing the in virto fertilization procedure, and

(3) indicates, by a writing, acceptance of the legal rights and responsibilities of parenthood for any resulting child unless the husband contributes his sperm for the in vitro fertilization procedure.

[(c) whose partner, or husband if the recipient is married, receives appropriate counseling, pursuant to Article 7 of this [Act] and:

(1) successfully completes the medical evaluation, if he is the gamete donor in the in vitro fertilization procedure and, in the case of a partner, successfully completes the nonmedical evaluation, pursuant to Article 7 of this [Act],

(2) provides written certification of the counseling and any evaluation to the licensed person performing the in vitro fertilization procedure, and

(3) indicates, by a writing, acceptance of the legal rights and responsibilities of parenthood for any resulting child unless the husband contributes his sperm for the in vitro fertilization procedure.]

Article 5 governs eligibility for in vitro fertilization. The substantive provisions of Article 5 track the provisions of Article 4, relating to insemination procedures.

Section 5-101 delineates those individuals who are eligible candidates for in vitro fertilization programs. As with insemination procedures, in vitro fertilization is by and large a medical treatment for infertility rather than an experimental procedure. The limitations on eligibility, therefore, are focused largely on medical risks and the resulting child's interests.

Recognizing that the state may have a compelling interest in avoiding medical complications associated with pregnancy, particularly those complications associated with pregnancy resulting from in vitro fertilization, Section 5-101 mandates a minimum age of 18. The brackets around this age limit reflect the fact that states may reasonably choose a different age limit, although, in light of increased risks, the limit should reflect a point at which the woman is able to understand the risks of the procedure.

The restrictions on access to in vitro fertilization by married persons are tailored to specific risks and interests. Among other things, married persons are required to undergo medical screening to ensure that the in vitro fertilization will result in a healthy child. Medical screening is not unnecessarily intrusive nor does it impose prohibitive additional costs. See ' 7-102 comment. Married persons are not required to complete the nonmedical evaluation. They are required to complete an appropriate level of counseling as determined upon all facts and circumstances. For a discussion of the nonmedical evaluation requirement in the insemination context, see ' 4-101 comment, para. 4. See also ' 7-101 comment.

Marital status is not an appropriate basis for limiting the availability of in vitro fertilization, especially in view of the procreative privacy rights of both single and married persons. See, e.g., Roe v. Wade, 410 U.S. 113, 153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). The bracketed language in Section 5-101 states the option to provide coverage to all couples that participate in in vitro fertilization, regardless of marital status. Expanding coverage beyond married couples extends parenthood rights and responsibilities to unmarried partners and provides a legal relationship for any child born through in vitro fertilization to both partners composing an unmarried couple, thereby enhancing support, inheritance, and other rights.

All persons covered by Article 5 are required to undergo counseling. Although this requirement places an additional burden on employing in vitro fertilization, the state has an important interest in protecting the child and assuring informed decisions by parties employing the procedure. Cf. Berman v. Allan, 80 N.J. 421, 432, 404 A.2d 8, 14 (1979) (holding doctor liable for failing to inform pregnant woman of pregnancy's consequences). At present, in vitro fertilization involves greater risks to the woman and to the resulting fetus than does insemination. See Mushin, Spensley & Barreda-Hanson, Children of IVF, 12 CLINICS OBSTETRICS & GYNAECOLOGY 865, 871-73 (1985) (discussing hazards). Furthermore, its success rate is problematic; often repeated and expensive procedures are required. See Elias & Annas, Social Policy Considerations in Non-Coital Reproduction, 255 J. AM. MED. A. 62,200-03 (1983) (discussing IVF procedures). The interest in providing awareness of these facts, as well as needed emotional support, outweighs the costs of counseling imposed on persons who conceive a child through in vitro fertilization. For further discussion of counseling in the insemination context, see ' 4-101 comment, para. 8. See also ' 7-101 comment.

Persons who conceive a child through in vitro fertilization may use their own gametes or may acquire donor gametes or donor preembryos. Optimally, any child conceived will be biologically related to one of the resulting parents. This is not always possible. For example, when in vitro fertilization and preembryo implantation using the participants' own gametes has failed, donor preembryos or donor gametes may be made available to these participants. Similarly, men and women who are carriers of autosomal recessive genes that in combination would result in a defective or unhealthy child may have access to donor embryos to avoid transferring the undesired genes.

In those instances in which the father is not biologically related to the child conceived by in vitro fertilization, a written acknowledgement of his acceptance of the legal rights and responsibilities of parenthood is required. This requirement prohibits the husband or partner from denouncing the obligations of parenthood at a later time. This writing also serves to prevent competing claims of paternity. See ' 2-102; ' 2-102 comment.

For further information, see comment to Article 4, relating to insemination.

(a) A surrogate arrangement is lawful only if it conforms to the requirements of this article and if, before the procedure to impregnate the surrogate:

(1) the licensed person performing the procedure receives written certification that the parties successfully completed the medical and nonmedical evaluation and counseling pursuant to Article 7;

(2) the surrogate arrangement has been judicially preauthorized pursuant to Section 6-103; and

(3) all parties to the surrogacy contract provide the licensed person performing the procedure with written indication of their informed consent to the arrangement.

(b) The procedure to impregnate a surrogate shall be performed only in accordance with regulations issued by the [State Department of Health].

Under Section 6-101(a), only surrogacy contracts among parties who comply with the specific requirements of Article 6 are valid. Contracts that do not comply with the statutory requirements are void. If a surrogacy contract is void, no party may bring an action for damages under the contract, nor may the contract transfer parentage to the intended parents under Section 6-104. Thus, the surrogate, as the birth mother, is the mother of the child pursuant to Section 2-101, paternity is determined under Section 2-102, and the intended parents can acquire parental rights only by following state adoption procedures.

Section 6-101(a)(1) requires all parties to the surrogacy contract to successfully complete the medical and nonmedical evaluation provided for in Article 7. Unlike Articles 4 and 5, there is no exception for married couples. Both of the intended parents, who must be married to each other, as required in Section 1-102(7), and the surrogate and her husband, if any, must undergo evaluation.

The use of surrogacy is significantly different from the use of insemination or in vitro fertilization procedures under Article 4 and Article 5. This justifies the differing treatment afforded married couples using those procedures and married couples using surrogacy. First, the decision to have a child by using insemination or in vitro fertilization is no different than deciding to have the child naturally; neither decision requires the consent of anyone outside the family. Even when donated gametes are used, the couple's decision is essentially private, for the donors are usually anonymous and are therefore not involved in the decision. Nonmedical evaluation of married couples using these procedures would be as intrusive of the couple's privacy as would the evaluation of couples conceiving naturally. Second, the nonmedical risks to the child that may be caused by using insemination or in vitro fertilization are limited. For example, although there is a risk that parents may not appreciate childrens' desire to know the nature of his or her conception, denial of this information to a resulting child should not cause extreme distress. Finally, because the risks associated with insemination or in vitro fertilization may be adequately addressed through the less intrusive requirement of counseling, see ' 7-103, the intrusion of nonmedical evaluation is usually unnecessary.

The privacy of a married couple in a surrogate arrangement stands in contrast to that of a married couple using insemination or in vitro fertilization. The decision to use a surrogate requires the intimate involvement of a person outside the family, not only in the decision to have a child, but throughout the process of conception, gestation, and delivery. Similarly, a married couple's decision to have the wife be a surrogate is entirely dependent on the desire of another family. In both cases, the couples have chosen to involve those outside their own family in their decision to have a child. Therefore, the requirement of nonmedical evaluation does not involve the same degree of intrusion as it would with insemination or in vitro fertilization.

Surrogacy also creates a variety of nonmedical risks to the potential child that are not present in the other regulated procedures. For example, the surrogate, after relinquishing the child to the intended parents, might change her mind and want the child back. This danger was recently illustrated in the Baby M case. See In re Baby 'M', 217 N. J. Super. 313, 525 A.2d 1128 (N. J. Super. Ct. Ch. Div. 1987). Here, the surrogate's potential difficulty in relinquishing the child was identified in an initial evaluation, but that finding was never revealed to either the surrogate or the intended parents. Nonmedical evaluation would attempt to identify and reveal such information before the surrogate becomes pregnant.

Another potential risk of surrogacy is that, because of the bond between a child and his or her gestational mother that occurs in utero, the child will suffer when removed from that woman's care. See R. SNOWDEN, G. D. MITCHELL & E. M. SNOWDEN, ARTIFICIAL REPRODUCTION: A SOCIAL INVESTIGATION 170-71 (1983). Requiring successful completion of the nonmedical evaluation attempts to address this concern and other unknown risks of surrogacy by attempting to ensure the child a good home.

For an explanation of the requirement of informed consent, see ' 1-102 comment, paras. 2-5.

(b) The intended mother must be medically determined to be physiologically unable to bear a child without serious risk to her health or to the child's health.

(c) The intended mother or the intended father must provide a complete gamete to be used to impregnate the surrogate.

(e) No woman can be a surrogate unless she has a documented medical history of at least one uncomplicated pregnancy and uncomplicated vaginal delivery.

Section 6-102 provides the rules of eligibility for surrogacy. Becuase of surrogacy's unknown long-term effects on the surrogate and the child, and its known risks of custody litigation and unwanted, deformed children, the use of this procedure should be limited. This section restricts surrogate arrangements to those that allow a married couple who are otherwise unable to have a child to have one that is biologically related, while using the simplest medical procedure.

Subsection 6-102(a) provides a bracketed age minimum for parties to the surrogacy contract. An age requirement is based on the increased health risks accompanying teenage pregnancy. Although states may reasonably choose a different age limit, this limit should take into account the emotional difficulties of surrogacy and the ability of the parties to give informed consent.

Subsection 6-102(b) limits intended parents to those who are unable to have, or are medically advised against having, a child naturally or through insemination, in vitro fertilization, or other medically assisted conception. This section thereby excludes married couples from using surrogacy for convenience.

Only medical conditions that create serious risks to the health of the mother or child, or that make pregnancy impossible, are sufficient causes for using a surrogate. Examples of sufficient causes include lack of a uterus, severe hypertension, severe epilepsy, and a known or strongly suspected X-lined genetic disease.

In all cases, a medical procedure that would result in a safe pregnancy with high prospects for a healthy baby should be attempted before surrogacy. For example, if the woman is known, or is strongly suspected, to pass a defect such as hydrocephaly, then in vitro fertilization with preembryo transfer to the intended mother using a donated ovum, or a transfer of donated preembryos to the intended mother, should be attempted before surrogacy.

Section 6-102(c) requires the child to be biologically related to one of the intended parents. It also excludes the use of developing technologies; such as recombining DNA and replacing the nucleus of an ovum, that may allow more than one person to contribute to a single gamete.

Section 6-102(d) restricts the ovum used in a surrogacy arrangement to either the ovum of the intended mother or the ovum of the surrogate. The parties may use the intended mother's ovum so that she is related to the child, or they may use the surrogate's ova and insemination using the intended father's semen. Besides guaranteeing that one of the intended parents is biologically related to the child, these limits ensure that only the safest procedures are used. A donated ovum may not be used because it would require the risk of an additional medical procedure without resulting in either intended parent being a biological parent.

Subsections (c) and (d) read together substantially limit the possible combinations of gametes allowed in a surrogate arrangement. For example, if donated semen is used, the intended mother must provide the ovum so that the child will be related to an intended parent. Similarly, if the surrogate's ovum is used, the intended father must provide the semen. Because subsection (d) effectively prohibits using a donated ovum, the only other combination available is using the intended father's semen with the intended mother's ovum.

Section 6-102 requires a surrogate to have a documented medical history of one uncomplicated pregnancy and vaginal delivery. These eligibility requirements ensure the physical ability of the surrogate to carry a child to term. They are also necessary if a surrogate is to realistically give her informed consent. See ' 6-104(d), para. 9.

A petition for preauthorization of a surrogacy arrangement must be brought in the [district court] for the [district] in which the surrogate resides at the time the petition is filed.

(1) Prior to insemination or in vitro fertilization of a surrogate, the parties to a surrogacy contract, as specified in Section 6-104, shall jointly petition the [court] for judicial preauthorization of the surrogacy arrangement.

(i) the full name, age, place, and duration of residence of all petitioners;

(iii) the date and place of the marriage, if any, of the surrogate and her husband;

(vii) the name and address of the licensed person who will perform the procedure.

(1) After the filing of a petition for preauthorization, the [court] shall fix a time and place for hearing within [30] days.

(2) Notice of the filing of the petition and the time and place of hearing shall be given by petitioners at least 10 days prior to hearing to any person who conducted any nonmedical or medical evaluations or counseling pursuant to Article 7 of this [Act].

(2) The parties may offer additional evidence deemed relevant by the [court], and the [court] may require the submission of such additional information as it deems appropriate under the circumstances.

(3) An order validating the surrogacy arrangement shall be issued only if, after the hearing, the [court] makes the following findings:

(i) All parties to the surrogacy contract have given their informed consent;

(ii) The surrogacy contract conforms to all of the requirements of Section 6-104 of this [Act] and contains no prohibited or unconscionable terms; and

(iii) Evaluations and counseling, pursuant to Article 7, have been completed, and petitioners have been determined by the persons performing the evaluations or counseling to be qualified to enter into the surrogacy arrangement as provided by this [Act].

(4) The effect of a judicial order validating the surrogacy arrangement shall be the automatic termination of the parental rights of the surrogate and her husband, if any, 72 hours after the birth of a child born as a result of the arrangement and a vesting of those rights solely in the intended parents, unless the surrogate exercises her rights under Section 6-104(d) of this [Act] to keep the child, in which case any parental rights of the intended parents shall be terminated and shall be vested solely in the surrogate and her husband, if any.

(1) All hearings shall be closed to the public. The only persons admitted shall be essential officers of the [court], parties, witnesses, and counsel.

(2) All papers and records pertaining to the surrogacy hearing are subject to inspection only upon consent of all petitioners or upon a showing of strict necessity supported by a court order.

Section 6-103 describes the procedures that must be followed by the parties to a surrogacy agreement in order for that agreement to be a valid and binding contract. Essentially, Section 6-103 determines the validity of the contract prior to the impregnation of the surrogate. Once the contract is determined to be valid, it cannot later be challenged.

Section 6-103 provides that, prior to insemination or in vitro fertilization of a surrogate, the parties to the surrogacy arrangement must receive judicial authorization of the surrogacy arrangement. The [court] will authorize and validate the surrogacy arrangement only after making particular findings following a hearing on the matter.

The goals of the hearing and judicial preauthorization are therefold: (1) to ensure that all the parties to the surrogacy contract have given their informed consent tothe surrogacy arrangement; (2) to ensure that the surrogacy contract is fair, reasonable, valid, and in conformance with the [Act]; and (3) to ensure that the surrogacy contract permits the surrogate to keep the child if she complies with Section 6-104(d) of this [Act].

The goal of assuring informed consent is accomplished in a number of ways. First, Section 6-103(b)(1) provides that the parties to a surrogacy arrangement must jointly petition the court for the judicial preauthorization of the surrogacy arrangement. Since all parties to the contract must jointly petition for approval of the contract, they are not required to receive notice. In contrast, Section 6-103(c)(2) requires that, at least ten days prior to the hearing, petitioners give notice of the filing of their petition for preauthorization, including the time and place of the hearing, to any person who conducted any medical or nonmedical evaluation or counseling pursuant to Article 7. This will assist the [court] in determining whether the parties have acted with informed consent and whether approving the contract serves the best interest of the child.

Section 6-103(d)(1) provides further assurance that informed consent will be given by the parties to the arrangement by requiring that petitioners be present at the hearing. Finally, Section 6-103(d)(3)(i) explicitly provides that the [court] shall issue an order validating the surrogacy arrangement only upon finding that all parties to the arrangement have given their informed consent to the surrogacy arrangement.

The main goal of Section 6-103 is to have a [court] determine in the judicial preauthorization hearing that the proposed surrogacy contract is fair, reasonable, and in conformity with the requirements of the [Act]. In order to facilitate this decision, Section 6-103(b), among other things, requires that the petition for judicial preauthorization contain the following: the names, ages, and addresses of all petitioners; the date and place of marriage of the intended parents and of the surrogate and her husband, if any; a copy of the proposed surrogacy contract; all required written consents; and all reports and evaluations required by the [Act].

To provide the [court] with all possibly relevant information at the hearing, and to provide flexibility in the hearing process, Section 6-103(d)(2) allows the parties to offer, and the [court] to consider, additional relevant evidence. This section empowers the [court] to require the parties to submit any additional information that the [court] believes is necessary, relevant, or appropriate in the particular circumstances of any given case.

As a condition for valid authorization, Section 6-103(d)(2)(iii) requires the [court] to find that all evaluations and counseling have been completed pursuant to Article 7 and that the petitioners are persons who are qualified to enter into the surrogacy arrangement. This finding applies to both the intended parents, the surrogate, and her husband, if any, since one or more of them may ultimately become the parent of the resulting child. After consideration of all the relevant facts pursuant to Section 6-103(d), the [court] can validate the surrogacy arrangement, but only upon finding that the written contract contains all of the provisions required by Section 6-104 and contains no prohibited or unconscionable terms. By requiring an assessment of the validity of the surrogacy contract prior to performance, these provisions help justify the finality of a judicial preauthorization order as established in Section 6- 103(d)(4).

The third purpose of Section 6-103 is to ensure that all proposed surrogacy contracts allow the surrogate to elect to keep the child at any time prior to seventy-two hours after a child's birth. Because the surrogate is presumed to be the mother of the resulting child, see ' 2-101, and because the surrogate may decide that she desires to keep the resulting child, Section 6-103(d)(4) ensures that the surrogate will always have seventy-two hours after the birth of the child in which to withdraw any prior consent to the termination of her parental rights. Requiring that a surrogate finally relinquish her claim on the resulting child upon contract, or at some other point before the child's birth, would force the surrogate to decide before completion of the bonding process and could result in long-term emotional harm. Thus, the surrogate should be allowed to decide to keep the child sometime after it is born. Giving the surrogate a seventy-two-hour period recognizes that a newborn child usually leaves the hospital approximately seventy-two hours after birth. By firmly and finally establishing the rights and duties of all parties involved before the child leaves the hospital, Section 6-103(d)(4) in conjunction with Section 6-104(d) prevents undue emotional or physical hardship to the child or to the other parties involved. See ' 6-104(d) comment, paras. 6-8.

In addition to constituting a final decision on the validity of the surrogacy arrangement generally, the judicial order automatically establishes specific rules governing the parentage of the child. Section 6-103(d)(4) provides that the effect of a judicial order validating a surrogacy arrangement is to terminate the parental rights of the surrogate and, if she is married, of her husband seventy-two hours after the birth of the child and to vest them exclusively in the intended parents, provided that the surrogate does not give notice as provided in Section 6-104(d) that she elects to keep the child. If the surrogate gives such notice within the seventy-two-hour period, then she and her husband, if any, retain all of the parental rights to the exclusion of the intended parents, and any parental rights of the intended parents are terminated and vested solely in the surrogate and her husband, if any. Even if Section 6-103(d)(4) did not exist, a judicial order validating a surrogacy agreement would obligate the parties to the agreement to follow the rules prescribed by that section. See Article 2; ' 6-103(d)(3); ' 6-104(a)-(c). The purpose of Section 6-103(d)(4) is to independently and directly provide that these events must occur.

In order to provide privacy to all of the parties involved in the surrogacy arrangement and to encourage the parties involved to disclose any and all possibly relevant information to the [court], Section 6-103(e)(1) states that all hearings will be closed to the public. Finally, Section 6-103(e)(2) provides that all papers and records relating to the proceeding are subject to inspection only upon the consent of the petitioners. Upon a showing of strict necessity, however, nonidentifying information from the record can be made available to a resulting child who attains age eighteen. See ' 9-201(e). These provisions reflect a balance between certain individuals' strong desire to know general facts about their biological parents' national origin, background, physical characteristics, and the like, and the privacy rights of the surrogate and the intended parents.

A surrogacy contract must be signed by the intended parents, the surrogate, and, if she is married, the surrogate's husband and shall include the following provisions:

(a) the consent of the surrogate that she will surrender custody of the child or accept the obligation of parenthood if she gives notice of intent to keep the child as provided in Section 6-104(d) of this [Act];

(b) the consent of the husband of the surrogate, if any, that he will surrender custody of the child or accept the obligation of parenthood if the surrogate gives notice of intent to keep the child as provided in Section 6-104(d) of this [Act];

(c) the consent of the intended parents that they will accept the obligations of parenthood unless the surrogate gives notice of intent to keep the child as provided in Section 6-104(d) of this [Act];

(d) the right of the surrogate to keep the child if, at any time prior to 72 hours after the birth of the child, the surrogate:

(2) delivers the writing to the intended parents or the attending physician.

This right can only be exercised personally by the surrogate and cannot be exercised by any guardian or other legal representative of the surrogate.

(e) A provision for adequate coverage through insurance or otherwise of health care expenses of the surrogate and the child for the term of the pregnancy and six weeks after the termination thereof for complications caused by the pregnancy or birth;

(f) if the surrogate will receive a fee, a provision that the fee will be deposited into an escrow account at a federally insured institution prior to a conception and held in escrow until:

(2) the contract is terminated before a live birth by means other than a breach by the surrogate. In this case, the surrogate will receive that portion of the fee which the parties to the surrogacy contract shall have provided for in the surrogacy contract.

Section 6-104 sets forth the terms that a surrogacy contract must contain. This section is intended to be an aid for contract drafters and for the court during the judicial preauthorization hearing provided for in Section 6-103. While the parties to a surrogacy contract can draft a contract tailored to their particular needs, the contract must contain the provisions delineated in this section.

In addition to the mandatory contractual terms provided for in Section 6-104, the parties to a surrogacy contract may want to include additional contractual terms. Provisions for health or life insurance on the lives of both the surrogate and the intended parents are encouraged. The parties may wish to include provisions that relate to the life style of the surrogate during the term of the pregnancy, such as not smoking, drinking alcohol, or using drugs. The parties may wish to add a provision that would allow the child to learn of the arrangement at some future date and may wish to contract specifically with respect to who is to make health care decisions for the child within the seventy-two-hour period following the child's birth. See ' 3-101. These additional terms or provisions are encouraged but are not required. While such terms may be desirable, the parties should be allowed to draft a contract to fit their particular needs.

Section 6-104(a)-(c) is intended to ensure that each party to the surrogacy contract accepts the responsibility of parenthood in the event that party becomes the parent of the child. These provisions are required for all parties to the surrogacy contract because of the possibility that the surrogate may elect to keep the child within the seventy-two-hour period following the child's birth. See ' 6-104(d).

Section 6-104(d) requires that the contract include a provisions allowing the surrogate to retain custody and parenthood of the child provided she executes and delivers a writing of her intention to keep the child to the intended parents or the attending physician within seventy-two hours after the birth of the child. Since the surrogate's right to give this notice is absolute, it can be given by the surrogate whether or not the child is living. This provision, like the other required provisions, cannot be waived. If the surrogate does not exercise her option to keep the child within the seventy-two-hour period, the intended parents become the child's parents and the surrogate's parental rights terminates. See ' 2-103; see also ' 6-103(d)(4). If the surrogate exercises her option to keep the child, her decision is final. Therefore, under Section 2-101 the surrogate continues to be the child's mother and the child's father, if any, is determined under Section 2-102. In light of these provisions, the custody of the child and the determination of the parent-child relationship is determined finally no later than seventy-two hours after the child's birth.

The election to keep the child must be exercised, in all events, during the seventy-two-hour period and may only be exercised by the surrogate. No guardian or other legal representative may give the notice on behalf of the surrogate. If the surrogate is legally incapable of giving the notice throughout the seventy-two-hour period, her right to give the notice expires, and the intended parents become the parents of the child. If the child is defective and neither the surrogate nor the intended parents want to keep the child so that the child becomes the ward of the state, any obligations to the state are the intended parents' obligations, not the surrogate's obligations. Section 6-106(c) contemplates that if the intended parents do not want the child and the surrogate elects to keep the child, perhaps to keep the child from becoming the ward of the state, the surrogate may recover child support from the intended parents.

Section 6-104(d) balances the interests of all parties to the surrogacy contract as well as the child and eliminates long custody disputes. Available evidence suggests that custody disputes should be settled as soon as possible to protect the interests of the child and that, once made, the decisions should remain final. See J. GOLDSTEIN, A. FREUD & A. SOLNIT, BEYOND THE BEST INTEREST OF THE CHILD 42-45 (1973). The seventy-two-hour period ensures that in most situations the custody and parent(s) of the child will be determined before the child leaves the hospital.

Under Article 7, all parties to a surrogacy contract undergo a nonmedical evaluation to determine their suitability to parent a child. Accordingly, the child born to a surrogate should not be injured by the seventy-two-hour rule. If the surrogate elects to keep the child, the child will be placed with a woman who has been determined to be a suitable parent and to whom the child has become bonded during the in utero period. See D. SMITH & L. SHERWEN, MOTHERS AND THEIR ADOPTED CHILDREN--THE BONDING PROCESS 67-68 (1983). If the intended parents, who were also determined to be suitable to parent a child, become the parents of the child, the child will be able to begin the bonding process with them shortly after birth and in all likelihood as soon as the child leaves the hospital.

The seventy-two-your rule is also in the best interests of the child because it places a degree of certainty in the custody determination. An alternative approach that requires a custody hearing after the birth of the child might not accomplish this goal. A custody hearing may be disputed or delayed. In this situation, the psychological bonding process between the intended parents, if they receive custody, and the child is delayed.

Section 6-104(d) protects the interests of the surrogate by giving her an option to retain custody of the child. Until effective screening procedures are developed to determine which women will make good surrogates, a woman may enter into the agreement without fully understanding the promises she is making. For example, the surrogate may not realize the full impact of giving up the child when the contract is made, although the requirement in Section 6- 102(e) that the surrogate have had one uncomplicated pregnancy and delivery should help to avoid this problem. If the surrogate is forced to surrender custody of the child, some studies indicate that this may cause the surrogate long-term psychological problems. See Condon, Psychological Disability in Women Who Relinquish a Baby for Adoption, 144 MED. J. AUSTL. 117, 118 (1986). While some may consider the seventy-two-hour period too short to allow the surrogate an opportunity to decide whether to keep the child, most surrogates who will regret their decision to surrender the child will begin to experience doubts about the decision during the pregnancy. Therefore, the seventy-two- hour period added to the term of the pregnancy should be enough time for the surrogate to make her decision, especially when concerns for protection of the surrogate are balanced against the best interests of the child and the interests of the intended parents.

Section 6-104(d) is also designed to further the interests of the intended parents by ensuring that, once the seventy-two-hour period has expired without the surrogate exercising her option, she will not later be able to challenge the custody rights and parenthood of the intended parents. Under a rule that makes the surrogate's contractual promise to surrender custody of the child enforceable immediately, there is a chance for custody disputes. See In re Baby 'M', 525 A.2d 1128 (N.J. Super. Ct. Ch. Div. 1987). If the surrogate begins to doubt her decision before the child is born, the surrogate may leave the state, and the result may be a long custody battle, with the laws of other jurisdictions complicating the dispute. With the seventy- two-hour rule, however, the surrogate who regrets her decision will be able to exercise her option and will not subject the child or the intended parents to the emotional suffering and uncertainty of an extended custody dispute.

Although Section 6-104(d) allows a surrogate to change her mind, the seventy- two-hour rule is designed to decrease the number of surrogates who actually do change their minds. Section 6-104(d) provides an incentive for the intended parents to ensure that the surrogate is selected by the best evaluation procedures that are available. This same incentive ensures that surrogacy contracts contain provisions to give the surrogate adequate counseling before, during, and after the pregnancy to help her cope with problems she may experience bysurrendering custody of the child. Finally, the surrogate's decision is not cost free. If the surrogate elects to retain custody of the child, the intended parents are entitled to restitution damages to the limited extent provided for in Section 6-106(a).

Section 6-104(e) requires that a health care provision be included in the surrogacy contract. This section is intended to ensure that the surrogate and the child receive adequate medical care. This section allows for their health care costs to be provided for through the use of insurance or otherwise. Requiring the parties to obtain insurance coverage may not be practical because of the commercial unavailability of health care coverage for surrogacy arrangements. Therefore, the parties may use whatever means are available to ensure that the health care costs will be paid.

Section 6-104(f), requiring that any fee be held in escrow, is intended to protect both the surrogate and the intended parents. The surrogate's fee must remain in the account until the contract is completed. The surrogate will receive her fee if she does not materially breach the contract or elect to keep the child pursuant to Section 6-104(d). In this way, the surrogate is assured that she will receive her compensation if she completes the contract. In addition, the surrogate's decision to keep the child pursuant to Section 6- 104(d) will not be influenced by the fear that she will have to return to the intended parents a substantial sum of already expended money. The intended parents also are protected in the event that the surrogate breaches the contract, because the intended parents can recover the fee. Because of this requirement, insolvent surrogates cannot demand a substantial immediate payment, spend all of the money, and then refuse to perform. By requiring performance before payment, Section 6-104(f) removes the lure of an immediately available large sum of money and ensures that surrogates have thought about their ability and desire to perform. For these reasons, in no event can the contract provide for a distribution of the fee to the surrogate until the relinquishment of parenthood to the intended parents or the termination of the contract other than by a breach by the surrogate. This section does not prohibit payment to the surrogate for reasonable medica or living expenses before completion of the contract.

Although not required, an ideal contract would provide for a pro rata payment to the surrogate in the event that the pregnancy is terminated before birth in circumstances that do not constitute a breach of the contract. For example, the surrogate may have to undergo several unsuccessful inseminations before the contract is terminated pursuant to Section 6-106(b), or an abortion may be required to protect the surrogate's health. In these situations, the surrogate should receive some compensation for her time and services. What compensation, if any, the surrogate receives in such circumstances is negotiable by the parties.

There shall be no specific performance for a breach by the surrogate of a surrogacy contract term that:

Section 6-105 prohibits specific performance for breach of a contract term requiring the surrogate to become impregnanted, requiring her to have an abortion, or forbidding her to have an abortion. Section 6-105 is intended to safeguard the surrogate's right to privacy in matters that affect her own body. This section is meant to conform with existing Supreme Court decisions regarding abortions and also draws on contract law regarding personal service contracts.

Because of Supreme Court decisions, starting with Roe v. Wade, 410 U.S. 113 (1972), the enforceability of a contract term forbidding the surrogate to have an abortion is doubtful. See Coleman, Surrogate Motherhood: Analysis of the Problems and Suggestions for Solutions, 50 TENN. L. REV. 71, 85 (1982). But see Note, Developing a Concept of the Modern 'Family': A Proposed Uniform Surrogate Parenthood Act, 73 GEO. L.J. 1283, 1314 n.162 (1985). The [Act] reflects a judgment that the surrogate should be entitled to make decisions regarding her own body notwithstanding the terms of the surrogacy contract.

The ability to specifically enforce the types of contract terms embodied in this section is also questionable under existing contract law. See, e.g., Keane, Legal Problems of Surrogate Motherhood, 1980 S. ILL. L.J. 147, 168. Generally, courts will not order specific performance of a personal service contract. See J. FRIEDMAN, CONTRACT REMEDIES IN A NUTSHELL 123 (1981). Courts will refuse to order specific performance as a remedy for breach of a personal service contract, for three reasons. First, if the breaching party is reluctant to perform, the adequacy of the party's performance will be difficult to ensure. Second, contracts of a personal nature require the parties to have a continuing relationship. In some situations the court might feel it is undesirable to force the parties to continue the relationship once ill feelings develop. Last, specific enforcement of a personal service contract often puts the breaching party into a form of involuntary servitude. See generally E. FARNSWORTH, CONTRACTS ' 12.7, at 835-36 (1982).

Specific performance should not be a remedy for a breach of the contract terms specified in this section. For instance, it would be undesirable and pose a difficult enforcement problem if the court could compel a surrogate to become impregnanted or to forbid the surrogate from having an abortion. In these situations, the surrogate could take actions that might endanger the fetus or be contrary to the interests of the intended parents. In addition, the relationship between the surrogate and the intended parents is one that demands a degree of trust and loyalty. In the situations dealt with by this section, it would not be in the best interests of the parties for a court to force a continuation of the relationship once a dispute has arisen. Furthermore, a judicial decree requiring the specific performance forbidden by Section 6-105 enslaves the surrogate mother by forbidding important choices of a highly emotional, intimate nature.

While the surrogate will not be held to specific performance for breach of a contract term that is included in this section, the intended parents may recover restitution for their expenses. See ' 6-106(a).

(a) The intended parents may recover only health care expenses and the fee prescribed in Section 6-104(f) if:

(2) the surrogate has an abortion that is not medically necessary without the consent of the intended parents; or

(3) the surrogate elects to keep the child as provided in Section 6- 104(d).

(b) If the surrogate fails to become pregnant through no fault of either party within nine months after the surrogacy contract has been judicially approved pursuant to Section 6-103 of this [Act], the contract is voidable at the option of either party.

(c) If the intended parents breach a material term of the contract, the surrogate may:

(1) recover health care expenses that the intended parents were required to pay;

(3) if the breach is refusal to accept the child within 72 hours after birth, the surrogate may file notice pursuant to Section 6-104(d) of this [Act] and the intended parents may be liable for support.

Under Section 6-106(a), if the surrogate refuses to become impregnated, has an abortion that is not medically necessary without the consent of the intended parents, or elects to keep the child, the intended parents may recover any fee, and restitution damages for any of the surrogate's or resulting child's health care expenses. Section 6-106(a) is intended to limit existing contract law remedies for the awarding of restitution damages. Under this section, the intended parents will be reimbursed for health care expenses they paid during the period the contract was in force. The intended parents will also be able to collect the entire fee set aside for the surrogate mother in the escrow account. See ' 6-104(f).

Section 6-106(a) applies only if the surrogate refuses to become impregnanted, unnecessarily aborts the fetus, or elects to keep the child pursuant to Section 6-104(d). In all other cases where the surrogate breaches the contract or is negligent, the intended parents may recover whatever contract or tort damages are available through existing law. If the surrogate's breach relates only to conduct described in Section 6-106(a), the court is limited in its choice of remedies to the fee and to restitution for health care expenses. If the intended parents can prove another breach or negligence, involving conduct extraneous to Section 6-106(c), then the court may resort to contract or tort remedies available through existing law, provided that such relief is given to remedy only the extraneous conduct. Thus, a cause of action in addition to and extraneous to those described in Section 6-106(a) does not nullify the limit on available remedies applicable to the conduct prescribed by that section.

Stated in terms of existing law, Section 6-106(a) implies that health care costs and the fee are adequate compensation for pecuniary injury caused exclusively by the described conduct and that any emotional injury suffered by the intended parents because of that conduct is not reasonably measurable in money damages. Under general contract law principles, a court will not award damages for emotional injury resulting from a breach of contract. There are exceptions to the general rule, however, in cases in which the breach is particularly likely to cause the injured party serious emotional injury. See E. FARNSWORTH, CONTRACTS ' 12.18, at 894-95 (1982). Expectation damages for this grave emotional harm must be proved to a 'reasonable certainty.' J. FRIEDMAN, CONTRACT REMEDIES IN A NUTSHELL 42 (1981). The remedy provided for the intended parents by Section 6-106(a) disallows damages for emotional harm, in part because of the difficult in measuring the actual harm that the intended parents suffered from the conduct described in that section. In each of the three stated situations, the injury to the intended parents will be the loss of the child, and this cannot be measured by money damages. The surrogate's negligence or breach that does not involve conduct described in Section 6- 106(a), however, may cause a reasonably measurable injury in addition to health care costs and the fee, and for this injury, existing law should dictate the remedy.

Section 6-106(a) also limits damages for reasons unique to a surrogacy arrangement. While the surrogate's actions may cause emotional harm to the intended parents, damages are limited to health care expenses and the fee to further the other goals of this [Act]. First, the possibility of the surrogate being liable for an uncertain and potentially large sum of money may interfere with her right to make childbearing decisions under Sections 6-104(d) and 6- 105. Second, the child may be injured indirectly if the surrogate decides to exercise her option to keep the child pursuant to Section 6-104(d) and consequently becomes liable for a large sum of money. Last, limiting damages in this manner gives the intended parents a further incentive to seek out a properly evaluated surrogate and to provide her with the necessary counseling that would enable her to carry out her obligations under the contract. The recovery of health care expenses and the fee should help the intended parents financially in hiring another surrogate and attempting to have a child. Because the reasons given above are weaker for injuries not involving the conduct described in Section 6-106(a), existing law should control their remedy.

Under Section 6-106(b), the surrogacy contract can be terminated by either party if the surrogate does not become pregnant within nine months. This section applies to those situations where the surrogate fails to become pregnant through no fault of either party. In this way, the costs for unsuccessful attempts at impregnation will be limited and responsibilities will cease peaceably.

Section 6-106(c) provides a remedy for the surrogate in the event of a material breach by the intended parents. In general, if the intended parents breach the contract, the surrogate is entitled to her entire fee plus any expenses that she must bear which were to be paid by the intended parents. The surrogate is able to collect expectation damages because the value of her injury can be determined by the contract fee.

Section 6-106(c)(3) provides that, if during the seventy-two-hour period following the child's birth the intended parents refuse to accept the child, the surrogate may exercise her option to retain custody of the child pursuant to Section 6-104(d) and the intended parents may be liable for child support. This section serves to protect the child. Some intended parents will inevitably refuse to accept the child because of birth defects or for other reasons, such as the unanticipated death of one of the intended parents. When the intended parents refuse to accept custody of the child, the surrogate should be allowed to file the notice under Section 6-104(d), and the intended parents should still be liable for child support. This helps ensure that the child gets a parent and that the party at fault bears the cost.

Section 6-106(c)(3)